Delhi District Court
Khushi Ram vs State on 7 July, 2025
IN THE COURT OF SH. ABHISHEK GOYAL, ADDITIONAL
SESSIONS JUDGE-03, CENTRAL DISTRICT, TIS HAZARI
COURTS, DELHI
CNR No.: DLCT01-001718-2021
CRIMINAL APPEAL No.: 14/2021
KHUSHI RAM,
S/o. Late Shri. Rattan Lal,
R/o. J-57, Kucha Mohattar Khan,
Mori Gate, Kashmere Gate,
New Delhi-110006. ... APPELLANT
VERSUS
STATE (GOVT. OF NCT OF DELHI) ... RESPONDENT
Date of filing : 05.02.2021
Date of institution : 06.02.2021
Date when judgment was reserved : 24.03.2025
Date when judgment is pronounced : 07.07.2025
JUDGMENT
1. The present appeal has been filed under Section 374 of the Code of Criminal Procedure, 1973 ( hereinafter, referred to as 'Cr.P.C./Code') against the judgment dated 24.12.2020 (hereinafter referred to as 'impugned judgment'), passed by learned Metropolitan Magistrate (Mahila Court)-03/ Ld. MM (Mahila Court)-03, Central, Tis Hazari Courts, Delhi ( hereinafter referred to as the 'Ld. Trial Court/Ld. MM') in case bearing 'State v. Khushi Ram, Cr. Case No. 290823/2016', arising out of FIR No. 99/2013, PS. Kashmere Gate, under Sections 354/354A/509/506 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC'), convicting the appellant for the offences punishable under Sections 354/354A/509 IPC, and the consequent order of sentence dated 12.01.2021 (hereinafter referred to as 'impugned order'), passed by the Ld. Trial Court, C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 1 of 65 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.07 16:12:30 +0530 awarding the appellant; rigorous imprisonment for a period of 02 (two) years along with fine of Rs. 2,000/- (Rupees Two Thousand only), in default of payment of which fine, to undergo simple imprisonment for a period of 30 (thirty) days for the offence under Section 354 IPC; rigorous imprisonment for a period of 02 (two) years along with fine of Rs. 2,000/- (Rupees Two Thousand only), in default of payment of which fine, to undergo simple imprisonment for a period of 30 (thirty) days for the offence under Section 354A IPC; and rigorous imprisonment for a period of 02 (two) years for the offence under Section 509 IPC, sentences to run concurrently, besides the appellant was directed to be entitled to the benefit of the provisions under Section 428 Cr.P.C. (hereinafter impugned judgment and impugned order are collectively referred to as the 'impugned judgment and order').
2. Briefly, the case of the prosecution is that on 04.05.2013, the complainant/prosecutrix, Smt. 'MD1' (hereinafter referred to as the 'complainant/prosecutrix/victim') reached at the police station and tendered her written complaint inter alia asserting that she resided in Delhi along with her four daughters, whilst working as a domestic help. As per the complainant, her husband had abandoned her, after marrying someone else ( मे अपनी चार बच्चियो के साथ रहती हूँ और छोटे मोटे घरे लू काम करके जैसे तैसे अपना तथा अपनी बच्चियो का पेट पालती हैं और कु छ समय से मेरा घर वाला श्री **** दूसरी शादी करके कहीं बाहर चला गया है।). The complainant further asserted under her complaint that the appellant, harassed her and tried to take advantage of her vulnerable state ( मेरा पड़ोसी 1 Identity of the prosecutrix and that of her relatives and other particular have been deliberately withheld in view of the decisions in; 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. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 2 of 65
Digitally
signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.07.07
16:12:35
+0530
खुशी राम ने इस स्थिति का फायदा उठाकर मुझे बहु त परे शान करना शुरु कर दिया है ). Correspondingly, the complainant proclaimed that the appellant used to earlier tease her by saying, "I love you" to her, however, few days prior to said complaint, the appellant called her/the complainant to his house ( यू तो यह खुशी राम पहले से ही मुझे आई लव यू का जूमला बोलकर मुझे छे ड़ता रहता था और मैं संकोच वश खमोशी से इसकी बदतमीजी बेहु दगी मन मार कर सहन करती रहती थी किन्तु कु छ दिन पहले इस खुशी राम ने मुझे आवाज देकर अपने घर बुलाया). At that point in time, as per the complainant, the appellant was taking a bath as well as, was alone at his home (उस समय वह नहा रहा था और घर मे अके ला था जिसका मुझे मालूम न था). The complainant further asserted that she thought that the appellant had called her for some work, whereupon, she went to the appellant's house ( उसके बुलाने पर यह सोंचकर कि कोई काम होगा उसके घर चली गई). However, the complainant avowed that the appellant showed his private parts to her, at that point in time, barefacedly giggled and utter, "I love you" and "..ab tere ghar wala bhi tujhe chor kar chala gaya, tere din raat kaise kat-te honge, mujhse shaadi kar le...", to the complainant (तब उसने नहाते हु ए अपना लिंग मुझे दिखाया, बेशर्मी से हँसा और आई लव यू कहा और कहा कि अब तो तेरा घर वाला भी तुझे छोड़कर चला गया, तेरे दिन रात कै से कटते होंगे ). Upon this, as per the complainant, the appellant pressed her breast. However, as per the complainant, considering that she was mother to four daughters and alone, she returned to her home, without informing anyone of the same. As per the complainant, the said incident was around the festival of Holi. Thereafter, whenever the appellant used to meet the complainant, as per the complainant, he used to tell the complainant that he was chowdhary (important person) of the area and that nothing transpired in the area, without his consent. Correspondingly, the C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 3 of 65 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.07 16:12:39 +0530 appellant is proclaimed to have told the complainant that no one would come to her rescue, even if she complained. On the contrary, the appellant told the complainant that agitating her concerns, would lead the complainant into further trouble. The said complaint further chronicles that the appellant showed one card to the complainant and told her that the said card belonged to some influential Advocate and that the appellant was acquainted with all the Advocate, consequently, the complainant could do no harm to him. Ergo, as per the complainant, she continued to endure harassment in the hand of the appellant. However, the situations got grim, when the complainant was informed by her 10 (ten) years old daughter that the appellant used to also say, "I love you" to her and used to inappropriately touch her, declaring that he/the appellant would marry her when she grew up (मेरी आत्मा चीखने लगी जब मेरी बच्चियो मे से एक किरण उम्र 10 वर्ष जो पाँचवी कक्षा मे पढ़ती है ने मुझे बताया कि खुशी राम अंकल जी ने उसे (किरण) को भी आई लव यू, आई लव यू, कहता है, उसे अपने शरीर से चीपकाता है, पेशाब करने की जगह हाथ लगाता है कि जल्दी जल्दी बड़ी हो जा तुझसे शादी करूं गा।). Ergo, under such facts and circumstances, the instant FIR was registered, and investigation ensued. 2.1. Notably, during the course of investigation, statements of the complainant and that of her minor daughter were got recorded, in terms of the provisions under Section 164 Cr.P.C. Consequently, considering the statement of the complainant's daughter under Section 164 Cr.P.C., her age as well as in light of the allegations leveled by the complainant and her daughter, separate FIR bearing No. 115/2013, dated 16.05.2013, under Sections 354/354A/354B/509 IPC and Sections 8/12 of Protection of Children from Sexual Offences C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 4 of 65 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.07 16:12:47 +0530 Act, 2012 (hereinafter referred to as the 'POCSO Act'), PS. Kashmere Gate, Delhi was registered against the appellant herein. Thereupon, on conclusion of investigation in the said case, chargesheet was filed before the court of Ld. ASJ, Special Judge, Tis Hazari Court, Delhi. Consequently, pursuant to further investigation, the appellant was arrested in the present case, recovery was effected at the behest of the appellant, TIP proceedings qua the recovered/case property was conducted and the statements of various witnesses were recorded. Consequently, upon conclusion of the investigation in the present case, chargesheet was prepared as well as filed before the Ld. MM. Pertinent for the purpose(s) of the present discourse to reproduce the relevant extracts from the statement of the complainant, 'MD' recorded under Section 164 Cr.P.C. on 06.05.2013, as under;
"...Khushi Ram, होली के कु छ दिन बाद अपने घर पर नहा रहा था। घर पर कोई नहीं था। मुझे आवाज़ देकर बुलाया। जब हमने उससे पूछा कि क्या काम है।तो उसने मुझे अपने पास आने के लिए कहा। फिर उसने अपना कच्छा उठाकर अपना सामान (Toilet वाली जगह) दिखाया। फिर उसने मुझे एक वकील का कार्ड दिखाया और कहा कि 'मेरे वकील ने मुझे इस इलाके का प्रधान बना दिया है। मैं यहाँ का चौधरी हूँ, मेरा कोई कु छ नहीं बिगाड़ सकता।
जब भी मैं आती-जाती हूँ, वह मुझे I Love you बोलता रहता है। वह कहता है कि तेरा आदमी तो चला गाया है, मुझसे शादी कर ले। वह मुझे धमकी देता रहता कि वह मुझे मोहल्ले से निकाल देगा । गन्दे -2 इलज़ाम लगाता रहता है। कोई रिश्तेदार भी आता है, तो कहता है तेरा और तेरी बेटियों का यार आया है । वह धमकी देता है कि मेरे खिलाफ Complaint करे गा कि मैं गन्दी औरत हूँ। होली के कु छ दिन बाद (2-4 दिन बाद) उसने मुझे कहा कि मुझसे शादी कर ले। उसने मेरा दोनों छाती दबा दिया । उसने नहाते समय मुझे अपना Toilet wali जगह भी दिखाया। वह हमेशा मुझे धमकी देता रहता है कि वह मुझे बदनाम कर देगा । उसने मेरा और मेरी बेटियों का जीना मुश्किल कर रखाह है। मैं अब तक चुप रही। लेकिन अब उसने मेरी बेटी K**** को भी तंग करना शुरु कर दिया ।
C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 5 of 65 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.07.07 16:12:52 +0530
मेरी बेटी ने बताया कि वह जब भी जाती है। वह उसे I Love you कहता है। तथा अपनी बायरुम वाली जगह पर हाथ लगवाता है और उसकी बामरूम वाली जगह पर भी हाथ लगाता है। फिर मैं थाने गई और के स दर्ज कराया।..."
(Emphasis supplied) 2.2. Notably, upon such chargesheet being filed, Ld. Trial Court took cognizance of offence, specified therein vide order dated 25.10.2013 and summons were issued qua the appellant. Subsequently, upon the appellant's entering appearance before the Ld. Trial Court and upon compliance of the provisions under Section 207 Cr.P.C., arguments on the aspect of charge were addressed by/on behalf of the appellant as well as by Ld. Addl. PP for State. Consequently, the Ld. Trial Court vide its order dated 15.05.2014, directed framing of charges under Sections 354/354A/509/506 IPC against the appellant herein inter alia under the following observations;
"...It is well settled that at the stage of framing of charge, the court is not expected to go deep into the probative value of the material on record. If on the basis of material on record, the court could come to the conclusion that the accused would have committed the offence, the court is obliged to frame the charge and proceed with trial. Our own Hon'ble High Court in case titled as Sapna Ahuja V State 1999 (5) AD Delhi 407 has observed that at the time of framing of charge FIR and the material collected by the investigation agency cannot be sieved through the call ender of the finest gauzes to test its veracity. A roving inquiry into the pros and cons of the case by weighing the evidence is not expected or warranted at the stage of framing charge. In the present case, perusal of charge sheet, statement of witnesses recorded u/s 161 Cr.PC and other material available on record shows prima facie case against the accused for the offfence charged. Hence charges have been framed against accused to which he pleaded not guilty and claimed trial. Put up on 25.8.2014 for PE..."
(Emphasis supplied) C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 6 of 65 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.07.07 16:12:56 +0530 2.3. Pertinent here to further reproduce the charges, consequently, framed against the appellant by the Ld. Trial Court on 15.05.2014, as under;
"...I, ***, MM, Delhi, hereby charge you Khushi Ram, S/o. Late Sh. Rattan Lal as under:-
Firstly, that during the period of 28.03.2013 to 04.05.2013 at H No. J-76, Kuchha, Mohttar Kihan, Mori Gate, Delhi within jurisdiction of police station Kashmere Gate, you assaulted or used criminal force to the complainant Ms. M**** D*** with intention to outrage her modesty by such assault or criminal force and thereby committed an offence under section 354 IPC within my cognizance. Secondly, that during the period of 28.03.2013 to 04.05.2013 at H No. J-76, Kuchha, Mohttar Kihan, Mori Gate, Delhi within jurisdiction of police station Kashmere Gate, you established physical contact and advances involving unwelcome and explicit sexual overture by forcibly holding the hand of complainant Ms. M**** D*** and thereby committed an offence under section 354-A IPC within my cognizance.
Thirdly on various occasions at unknown date, time and place you uttered insulting words to the complainant with intention to insult her modesty and thereby committed the offense u/s. 509 IPC within my congnizance.
Fourthly on the above said date, time and place and on various occasions including on 28.03.2013 at unknown date, time and place you criminally intimidated the complainant and thereby committed an offence punishable u/s 506 IPC within my cognizance.
I hereby direct that you be tried on the said charges..."
(Emphasis supplied) 2.4. Markedly, the appellant pleaded not guilty to the aforesaid charges and claimed trial. Relevantly, during the course of trial, prosecution examined 07 (seven) witnesses , i.e., PW-1/Smt. 'MD'; PW-2/W/Ct. Jyoti; PW-3/Ct. Jitendra Bharadwaj; PW-4/SI Dhan Singh; PW-5/HC Kamlesh Kumar;
C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 7 of 65 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.07.07 16:13:00 +0530
PW-6/HC Subhash; and PW-7/IO/Insp. Veena. Apposite to note that during the course of trial, the appellant admitted FIR as Ex. AD-1; TIP proceedings of case property as Ex. AD-2, conducted by Sh. Arvind Bansal, Ld. MM; and statement of Smt. 'MD', under Section 164 Cr.P.C. as Ex. PW4/D, in terms of the provisions under Section 294 Cr.P.C. on 10.12.2018, leading to the Ld. Trial Court, dispensing with the examination of the corresponding witnesses. Subsequently, on conclusion of prosecution evidence, recording of statement of the appellant under Section 281/313 Cr.P.C. on 20.12.2018, as well as on the appellant's leading defence evidence/Defence witnesses , i.e., DW-1/Smt. Sharda and DW-2/Ms. Anita; as well as on conclusion of arguments on behalf of the appellant and the State, as aforementioned, the Ld. Trial Court vide impugned judgment and order, convicted and sentenced the appellant in the manner, as hereinunder noted.
3. 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, besides the fact that the Ld. Trial Court failed to appreciate the contents of the complaint, examination-in-chief as well as the cross examination of the complainant in its correct perspective. In this regard, Ld. Counsel further submitted that while passing the impugned judgment, Ld. C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 8 of 65 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.07.07 16:13:04 +0530 Trial Court failed to consider that the incident of misbehavior, allegedly commenced from 28.03.2013 and ended on 04.05.2013, despite which, no reason was given in the complaint lodged before the concerned Police Station as to why no specific date and time of misbehavior was specified under the said complaint, besides no explanation for having not made any complaint by the complainant in her said complaint is forthcoming from the material placed on record. It was further submitted by the Ld. Counsel that the complainant even failed to disclose the name of the police officials who allegedly refused to lodge FIR. As per the Ld. Counsel, the perusal of the records in the proceedings before Ld. ASJ, emanating from case FIR No. 115/13, the complainant failed to appear before the Police authorities for giving her statement, as specified under orders dated 22.04.2014, 15.07.2014, 26.08.2014, 23.09.2014, 13.03.2014, 11.08.2014, 13.01.2015, 24.02.2015, 09.04.2015, 30.04.2015 and 13.05.2015 of the Ld. ASJ. However, despite the same, as per the Ld. Counsel, the Ld. Trial Court wrongly held the appellant guilty of the aforenoted offences and erroneously convicted him on the vague and unspecific allegations. It was further strenuously contended by the Ld. Counsel that the Ld. Trial Court even failed to appreciate that three versions of the marital status of the complainant have been brought on record , i.e., under the written complaint dated 04.05.2013, the complainant proclaimed herself to be the wife of one, Shri Raj Kumar and asserted that she had four daughters, besides her said husband left her and married someone else. However, Ld. Counsel submitted that in the statement recorded in terms of the provisions under Section 164 Cr.P.C., the complainant avowed that her husband took away, C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 9 of 65 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.07 16:13:08 +0530 both his sons on the occasion of Holi and left her with four daughters. As per the Ld. Counsel, the complainant further improved her version, while initially asserting under her cross examination that she had seven children and that she was initially married with one Raghubir, out of which wedlock, three children were born and that remaining four children were born out of her wedlock with Raj Kumar. Nonetheless, the complainant further asserted that the name of her husband was Suresh, which discrepancies, contractions, variations, as per the Ld. Counsel, were not given due weightage by the Ld. Trial Court, while passing the impugned judgment.
3.1. Ld. Counsel for the appellant further submitted that the impugned judgment is based on conjectures and surmises, in as much as the Ld. Trial Court, failed to appreciate the evidence led by the parties and also the documents on record. In this regard, Ld. Counsel argued that the version of marriage and complainant's husband name, do not find corroboration from the material placed on record, in particular from the voter's ID (Ex.
PW1/D1) of the complainant, which shows the name of complainant's husband as Raj Kumar. Ld. Counsel further submitted that in her cross examination, the complainant asserted that her husband's name was Suresh and that at the time of filing of the case, Raj Kumar was her husband and that 15-20 days he left her, she married Suresh, without taking divorce from previous husband. In this regard, Ld. Counsel further asserted that even the records pertaining to FIR No. 115/2013, would clearly demonstrate that the complainant was repeatedly giving false statements regarding her marital status and children. Even otherwise, as per the Ld. Counsel, while passing the impugned C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 10 of 65 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.07 16:13:12 +0530 judgment of appellant's conviction, Ld. Trial Court failed to appreciate that the instant case was registered with revengeful and hostile attitude of the complainant towards the appellant, who had raised objections to the visits of Suresh at the complainant's house in the absence of her husband. Ld. Counsel vehemently asserted that the Ld. Trial Court, while reaching the conclusion of appellant's guilt was oblivious to the fact that the complainant, initially got FIR No. 99/2013/present FIR registered on the basis of written complaint dated 04.05.2013, however, subsequently, the complainant got registered FIR No. 115/2013 on same allegations of alleged misbehavior of the appellant with the complainant's daughter. As per the Ld. Counsel, despite the order of acquittal, passed by Ld. ASJ in the proceedings emanating from the said FIR/FIR No. 115/2013, Ld. Trial Court did not even mention of the said fact under the impugned judgment. As per the Ld. Counsel, the Ld. Trial Court did not apply its mind while passing the impugned judgment and completely ignored the different versions put forth by the complainant in her complaint and that in her statement, recorded under Section 164 Cr.P.C. Even otherwise, as per the Ld. Counsel, the Ld. Trial Court failed to consider that it was highly improbable/unbelievable that the appellant would commit any wrongdoing in the presence of his wife and children. In fact, it was submitted that the complainant's testimony does not inspire confidence, and it is quite possible that the appellant was falsely implicated in the present case as he used to object against the illegal visit of Suresh at the residence of the complainant, in the absence of her husband.
3.2. Ld. Counsel for the appellant further C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 11 of 65 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.07 16:13:16 +0530 reiterated/submitted that the Ld. Trial Court did not consider that the allegations levelled by the complainant were extremely vague and general, where she inter alia asserted that after the alleged incident, the appellant approached her and threatened that he was related to an Advocate, and no one could do any harm against him. In this regard, Ld. Counsel asserted that the Ld. Trial Court completely overlooked that no such card was placed on record by the prosecution and all the averments made against the appellant were false, imaginary and concocted. It was further strenuously argued that the Ld. Trial Court failed to appreciate that there was a huge delay in the registration of FIR against the appellant regarding the alleged misbehavior incidents commencing from 28.03.2013, where such FIR came to be registered only on 04.05.2013. As per the Ld. Counsel, even the statements/testimonies of other prosecution witnesses are not reliable, besides no proper and fair investigation was conducted by the police officials in the present case. In this regard, Ld. Counsel asserted that PW-2/Ct. Jyoti failed to give the name of two ladies Advocate, who allegedly accompanied the complainant to the police station on 04.05.2013. Further, PW-3/HC Jitender Bhardwaj in his cross examination, admitted that at the time of recovery of case property no public persons were present, which is highly unbelievable as the house of the appellant was situated in a crowded area of Mori Gate.
Correspondingly, as per the Ld. Counsel, PW-4/Dhan Singh asserted that he did not remember if any PCR call was made by the complainant and he admitted that there were several passers- by and neighbours on 04.05.2013, despite which, no other public persons/no one other than the complainant had been joined in the C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 12 of 65 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.07 16:13:20 +0530 present case, as witnesses. Concomitantly, Ld. Counsel submitted that the statement of PW-7/Veena Kumar is unreliable and does not support the version put forth by the prosecution. Ld. Counsel further submitted that even the defence and the material placed on record by the appellant were not accorded due weightage by the Ld. Trial Court, while erroneously reaching the finding of guilt of the appellant. Accordingly, Ld. Counsel vehemently asserted that the Ld. Trial Court failed to apply its judicial mind in a fair and proper manner and passed the impugned judgement in a whimsical manner. Even otherwise, it was submitted by the Ld. Counsel that the order of sentence was also passed by the Ld. Trial Court, impulsively, while failing to appreciate that the accused was of young age at the relevant point in time, as well as responsible for the look after and take care of his family members, besides there are no other cases pending against the appellant and that he has clean antecedents. Ld. Counsel for the appellant further vehemently argued that the punishment/penalty must not be retributive in nature, rather, humanizing, considering that sentencing an accused with severe sentence would subject his family members to grave depravity. Further, as per the Ld. Counsel, substantial time has lapsed since the incident in question and in case relaxation/leniency is not afforded to the accused, serious/severe repercussions may ensue to his physical and mental well-being. Consequently, the Ld. Counsel for the accused inter alia prayed that the present appeal be allowed, and the impugned judgment and order be set aside. In support of the said contentions, reliance was placed upon the decisions in; Narender Kumar v. State (NCT of Delhi), Crl. Appeal No. 2066- 67/2009, dated 25.05.2012 (SC); TT Antony v. State of Kerala, C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 13 of 65 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.07.07 16:13:24 +0530 AIR 2001 SC 2637; Amitbhai Anilchandra Shah v. CBI, (2013) 6 SCC 348; Babubhai v. State of Gujarat & Ors., 2010 (12) SCC 254; Rai Sandeep @ Deepu v. State (NCT of Delhi), Crl. Appeal No. 2486/2009, dated 07.08.2012 (SC); Pandurang Sitaram Bhgwat v State, Crl. Appeal No. 1513/2004, dated 17.12.2004 (SC); Javed Shaukat Ali Qureshi v. State of Gujarat, Crl. Appeal No. 1012/2022, dated 13.09.2023 (SC); Ravinder v. State, Crl.
Appeal No. 552/2020, dated 05.01.2022 (DHC); and Dr. Karunakar Patra v. State, WP (Crl.) 502/2021, dated 24.01.2022 (DHC).
4. 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 the appellant. 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. Concomitantly, it was submitted by the Ld. Addl. PP for the State, even otherwise, the contention of/on behalf of the appellant regarding the complainant's conduct and character are afterthought and have been raised by the appellant solely to prejudice the prosecution case, without there being any iota of truth behind the same. Lastly, it was submitted by the Ld. Addl. PP for the State that no ground of any indulgence or relaxation in either the impugned judgment or even in the order of sentence/impugned order, passed against the appellant are established, convincing this Court to grant any relaxation in C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 14 of 65 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.07 16:13:28 +0530 favour of the appellant.
4.1. Ld. Counsel for the complainant, while supplementing the arguments of Ld. Addl. PP for the State submitted that the allegation against the accused is grave in nature pertaining to woman's safety, which ought to be dealt with strictly. Ld. Counsel further submitted that the complainant is an illiterate woman, belonging to a socially and economically deprived section of society and after her husband's leaving her, she was in extreme distress, leading to delayed reporting of the incident. In this regard, Ld. Counsel vehemently argued that the complainant explained the reason why she had chosen to keep quiet against the appellant, which cannot be read against the prosecutrix in the instant case. It was further submitted by the Ld. Counsel that the complainant has been consistent in her deposition and gave a clear as well as detailed description of the alleged incidents, whereupon it is clear that soon upon the complainant's husband leaving her, the appellant tried to take advantage of her helplessness, while subjecting her to physical and mental distress. Ld. Counsel further submitted that there is no inconsistency in the complainant's statement made before the police officials, that made before the Ld. MM under Section 164 Cr.P.C. or in her examination in chief or cross examination before the Ld. Trial Court. In this regard, Ld. Counsel further contended that in the counselling report, the counsellor did not find any reason to disbelieve or suspect on complainant's statement, besides the complainant duly/correctly identified the case property, which was seized by the police. It was further submitted that the defence tendered no explanation for the allegation. Even the witnesses produced by/on behalf of the C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 15 of 65 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.07 16:13:32 +0530 appellant have no relationship or knowledge of the alleged incident. In this regard, Ld. Counsel further submitted that both the defence witnesses did not reside in the same locality as that of the appellant and complainant, rather, on different street. Correspondingly, as per the Ld. Counsel, it is not the case of the complainant that at the time of commission of the offence, wife or mother of the appellant were not present in the house, making the defence grossly misleading. Further, as per the Ld. Counsel, acquittal of the appellant in POCSO case/FIR No. 115/2013 has no bearing on the instant case as both the proceedings are separate, besides the allegations as well as applicable laws in the said cases are different. Ld. Counsel further reiterated that the Ld. Trial Court correctly applied its judicial mind and held the appellant/accused guilty, under the impugned judgment, deserving no indulgence/interference by this Court.
5. The arguments of the Ld. Counsel for the appellant, Ld. Addl. PP for the State as well as that of Ld. Counsel for the complainant have been heard and the record(s), including the Trial Court Record, written submissions/arguments filed by the parties as well as the case laws relied, thoroughly perused.
6. At the outset, this Court deems it apposite to enunciate the scope of jurisdiction of this Court in an appeal against conviction. In this regard, this Court deems it pertinent to outrightly make a reference to the decision of the Hon'ble Supreme Court2 in Atley v. State of U.P., 1955 SCC OnLine SC 51, wherein the Hon'ble Court, while delving into the ' scope and ambit' of appellate court's jurisdiction, against an appeal against acquittal or an appeal against conviction, inter alia noted as 2 Reference further made to; Padam Singh v. State of U.P., (2000) 1 SCC 621.
C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 16 of 65 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.07.07 16:13:36 +0530 under;
"8. ... It is also well settled that the Court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal. If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated. (See in this connection the very cases cited at the Bar, namely, Surajpal Singh v. State [1951 SCC 1207:
AIR 1952 SC 52]; Wilayat Khan v. The State of Uttar Pradesh [1951 SCC 898: AIR 1953 SC 122]. In our opinion, there is no substance in the contention raised on behalf of the appellant that the High Court was not justified in reviewing the entire evidence and coming to its own conclusions...."
(Emphasis supplied)
7. Correspondingly, the Hon'ble Apex Court in Narendra Bhat v. State of Karnataka, (2009) 17 SCC 785, iterated in respect of the foregoing as under;
"3. This Court has in a series of judgments held that a court exercising appellate power must not only consider questions of law but also questions of fact and in doing so it must subject the evidence to a critical scrutiny. The judgment of the High Court must show that the Court really applied its mind to the facts of the case as particularly when the offence alleged is of a serious nature and may attract a heavy punishment."
(Emphasis supplied)
8. Quite evidently, from a conjoint reading of the aforenoted judicial dictates it can be perspicuously deduced that the jurisdiction of this Court in an appeal against conviction extends to reappreciation of the entire material placed on record of the trial court and to arrive at an independent conclusion as to C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 17 of 65 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.07 16:13:41 +0530 whether the said evidence can be relied upon or not. In fact, as aforenoted, court(s), while exercising its appellate jurisdiction, is not only required to consider the question of law, rather, also question of facts to affirmatively reach a conclusion of guilt or innocence of an accused. In fact, it is trite law 3 that non-re- appreciation of the evidence on record in an appeal may affect the case of either the prosecution or even an accused. Needless to reemphasize that an appellate court is to be further wary of fact that presumption of innocence of an accused, even extents until an accused is held guilty by the final court of appeal and that such a presumption is neither strengthened by acquittal nor weakened by a conviction in the trial court.
9. Therefore, being cognizant of the aforesaid principles, however, before proceeding with the determination of the rival contentions of the parties, this Court deems it pertinent here to reproduce the relevant provisions under law/IPC, for the purpose of present adjudication, as under;
"354. Assault or criminal force to woman with intent to outrage her modesty-Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine. 354A. Sexual harassment and punishment for sexual harassment-(1) A man committing any of the following acts-
(i) physical contact and advances involving unwelcome and explicit sexual overtures; or
(ii) a 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.3
State of Gujarat v. Bhalchandra Laxmishankar Dave, (2021) 2 SCC 735.
C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 18 of 65 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.07.07 16:13:45 +0530
(2) Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both.
(3) Any man who commits the offence specified in clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.
*** *** ***
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, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to three years, and also with fine"
(Emphasis supplied)
10. Notably, it is observed from a perusal of the provisions, in particular, that of the provisions under Section 354A IPC that the said provision provides for criminality against any man who engages in unwelcome physical contact and advances explicit sexual behavior, demands sexual favors, shows pornography against a woman's will, or makes sexually colored remarks. Apposite for the purpose(s) of present discourse to further make a reference to the provisions under Section 354 IPC, which provides for criminality in case of assault or criminal force to a woman with an intent to outrage her modesty. Relevantly, in order to attract the said provision/Section 354 IPC, it is required from the prosecution to prove; (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 C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 19 of 65 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.07.07 16:13:49 +0530 (intention or knowledge) to 'outrage her modesty'. In this regard, this Court deems is further apposite to refer to the decision in Vidyadharan v. State of Kerala, (2004) 1 SCC 215 , wherein the Hon'ble Supreme Court4, while explicating the basic ingredients of Section 354 IPC, 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 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)
11. Analogously, the Hon'ble Supreme Court in Raju Pandurang Mahale v. State of Maharashtra & Ors., MANU/SC/0116/2004, while inter alia cogitating on the meaning of the term, 'modesty', remarked as under;
"11. Coming to the question as to whether Section 354 of the Act has any application, it is to be 4 Premiya v. State of Rajasthan, (2008) 10 SCC 81.
C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 20 of 65 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.07.07 16:13:53 +0530
noted that the provision makes penal the assault or use of criminal force to a woman to outrage her modesty. The essential ingredients of offence under Section 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 the woman intending thereby to outrage her modesty.
12. 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. The act of pulling a woman, removing her saree, coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman; and knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object. As indicated above, the word 'modesty' is not defined in IPC. The Shorter Oxford Dictionary (Third Edn.) defines the word 'modesty' in relation to woman as follows:
"Decorous in manner and conduct; not forward or lowe; Shame-fast, Scrupulously chast."
*** *** ***
14. Webster's Third New International Dictionary of the English Language defines modesty as "freedom from coarseness, indelicacy or indecency; a regard for propriety in dress, speech or conduct". In the Oxford English Dictionary (1933 Edn.), the meaning of the word 'modesty' is given as "womanly propriety of behavior; scrupulous chastity of thought, speech and conduct (in man or woman); reverse or sense of shame proceeding from instinctive aversion to impure or coarse suggestions"..."
(Emphasis supplied)
12. Reference in respect of the foregoing is further made to the decision of the Hon'ble Supreme Court in State of Punjab v. Major Singh, 1966 SCC OnLine SC 51 , wherein the Hon'ble Court, whist confronted with the issue, ' whether a female child C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 21 of 65 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.07 16:13:57 +0530 of seven-and-a-half months could be said to be possessed of 'modesty' which could be outraged', remarked as under;
"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, 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)
13. Remarkably, in the aforesaid dictate, the Hon'ble Apex Court unambiguously explicated 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 body, i.e., breasts, mouth any other body parts, etc., by an accused, without the consent of the complainant/victim, would indubitably and plainly fall within the four corners of the provisions under Section 354 IPC. Here, this Court further deems it pertinent to make a reference to the decision of the Hon'ble High Court of Delhi5 in T. Manikadan v. State (Govt of NCT of Delhi) & Anr., Crl. Rev. Pet. No. 404/2016, dated 10.01.2017, wherein the Hon'ble Court, while inter alia explicating the ingredients of offences under Section 354 and 354A IPC and the difference between the said provisions, noted as under;
5Amit @ Lalu v. State, Crl. Appeal No. 858/2016, dated 25.05.2017 (DHC).
C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 22 of 65
Digitally
signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.07.07
16:14:02
+0530
"9. Thus when the modesty of a woman is
outraged or it is likely to be outraged coupled with an assault or criminal force, Section 354 IPC would be attracted. Though assault can be by mere gesture or preparation intending or knowing that it is likely that such gesture or preparation will cause any person present to apprehend use of criminal force. This is an act more than mere physical contact with advances involving unwelcome and explicit sexual overtures. Ingredients of Section 354 IPC would show that the same mandate an actus reas of assault or criminal force with an intention to outrage or likely to outrage the modesty whereas a mere physical contact with advances as noted above would attract Section 354A IPC. Though in certain fact situations there may be cases where there may be an overlap of both Sections 354 and 354A IPC however, there may be cases which may exclusively fall either in Section 354 or Section 354A IPC. Once an offence falls under Section 354 IPC even if ingredients of Section 354A IPC are satisfied, the accused will be punished for Section 354 IPC the same being more serious in nature as it prescribes the minimum sentence of one year and term for imprisonment which may extend to five years."
(Emphasis supplied)
14. In as much as the applicability/culpability under Section 509 IPC in a given case is concerned, prosecution is inter alia required to prove, '(i) intention on the part of an accused to insult the modesty of a woman; and that the (ii) insult must be caused by; (a) uttering any words, or making any sound or gesture, or exhibiting any object intending that such word or sound shall be heard or that the gesture or object shall be seen by such woman, or (b) by intruding upon the privacy of such a woman'. Reference in respect of the foregoing is outrightly made to the decision in Varun Bhatia v. State & Ors., MANU/DE/5747/2023, wherein the Hon'ble High Court of Delhi, while explicating the contours of the provisions under Section 509 IPC, noted as under;
C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 23 of 65 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.07.07 16:14:05 +0530
"18. Section 509 of the Indian Penal Code delineates two pivotal components for establishing an offence: firstly, the presence of an intention to insult the modesty of a woman, and secondly, the manner in which this insult is perpetrated. The cornerstone of this provision is the requirement of intent, where the accused must possess a deliberate intention to affront or insult the modesty of a woman. This intent sets apart ordinary speech or actions from those that amount to an offence under Section 509. The insult itself can take place through two distinct modes. It can occur verbally or visually by uttering specific words, making sounds, or displaying gestures or objects, with the deliberate intent that these words, sounds, gestures, or objects are heard or seen by the woman involved. Alternatively, insult can manifest as an intrusion upon the woman's privacy, meaning thereby encroaching upon her personal space or violating her sense of privacy intentionally, in a manner that affronts her modesty. In essence, Section 509 emphasizes that intent is the linchpin of this offence, necessitating a deliberate affront to a woman's modesty for the Section to be invoked.
*** *** ***
21. In essence, both Section 354 and Section 509 of Indian Penal Code addressed the issue of outraging the modesty of a woman, but they do so in distinct ways. Section 354 primarily deals with cases involving physical assault or the use of force against a woman, wherein her modesty is violated through actions that involve direct contact or physical harm. On the other hand, Section 509 concerns instances where words, gestures, or acts are employed with the deliberate intent to insult or offend a woman's modesty, without necessarily involving physical force. This distinction in legal provisions reflects the recognition that outraging a woman's modesty can take various forms, both physical and verbal, and the law seeks to address each of these forms distinctly to ensure justice and protection for women in different situations. In the present case, the complainant has raised allegations solely under Section 509 of the Indian Penal Code against the accused."
(Emphasis supplied)
15. Here, it is further apposite to note that the superior courts have persistently avowed that in order for the provisions under Section 509 IPC to be invoked, merely insulting a woman C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 24 of 65 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.07 16:14:36 +0530 is not sufficient, rather, insult to the modesty of a woman is an essential ingredient of the said provision. In this regard, the Hon'ble High Court of Kerala in Abhijeet J.K. v. State of Kerala & Ors., MANU/KE/0617/2020, in unambiguous terms, noted as under;
"8. Section 509 of the Indian Penal Code provides that, 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, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to three years, and also with fine.
9. Utterance of any word or making of any sound or gesture by a person, intending to insult the modesty of a woman, attracts the offence punishable under Section 509 I.P.C., if such act was made intending that such word or sound shall be heard, or that such gesture shall be seen by such woman.
10. There is distinction between an act of merely insulting a woman and an act of insulting the modesty of a woman. In order to attract Section 509 I.P.C., merely insulting a woman is not sufficient. Insult to the modesty of a woman is an essential ingredient of an offence punishable under Section 509 I.P.C. The crux of the offence is the intention to insult the modesty of a woman.
11. Section 509 I.P.C. criminalises a 'word, gesture or act intended to insult the modesty of a woman' and in order to establish this offence it is necessary to show that the modesty of a particular woman or a readily identifiable group of women has been insulted by a spoken word, gesture or physical act (See Khushboo v. Kanniammal, MANU/SC/0310/2010: AIR 2010 SC 3196)."
(Emphasis supplied)
16. Quite evidently, for a prosecution under Section 509 IPC to sustain, it is imperative that there are definite allegations of insult to the modesty of woman or intrusion into her privacy and that merely insulting a woman is different from C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 25 of 65 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.07 16:14:39 +0530 insulting the modesty of woman. Clearly, in the former case, the allegations would fall short to even make a prima facie case for the offence under Section 509 IPC. Reference, in this regard is made to the decision of the Hon'ble High Court of Kerala in Basheer v. State of Kerala, Crl.MC.No. 837 of 2010, dated 24.03.2016, wherein the Hon'ble Court, while quashing a proceeding under Section 509 IPC, remarked as under;
"3. The learned Magistrate, and also the learned Sessions Judge erred in law to find that this prosecution can proceed under Section 509 IPC. Mere insult will not attract Section 509 IPC. For a prosecution under Section 509 IPC there must be a definite allegation of insult to the modesty of woman or intrusion into the privacy of woman. Thus the allegation must involve modesty of woman or privacy of woman. Mere insult or false allegation will not attract a prosecution under Section 509 IPC. In Annexure A2 complaint the 2nd respondent does not have a case that the petitioners herein had insulted her modesty as a woman, or that they had intruded into her privacy in any manner. If at all the petitioners had spread or published any insulting and defamatory matters, she can initiate prosecution for defamation under Section 500 IPC, provided, the allegations would come under the definition of defamation under Section 499 IPC. Any way mere insult or insulting words, or abuse will not attract a prosecution under Section 509 IPC. In this case there is absolutely nothing in the complaint preferred by the 2nd respondent, or in the final report submitted by the police to indicate that the petitioners had in any manner insulted her modesty or intruded into her privacy. Merely insulting a woman is different from insulting the modesty of woman. The subject of insult for a prosecution under Section 509 IPC must be the modesty of woman and not the woman as such. When there is nothing to make out the essential elements of the offence under Section 509 IPC, the prosecution against the petitioners cannot proceed under the law. I find that the present prosecution is an abuse of legal and judicial process. If at all the 2 nd respondent has a grievance or complaint that the petitioners herein had made or published any defamatory material against her alleging misappropriation of amount, she will have to pursue C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 26 of 65 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.07 16:14:43 +0530 appropriate remedy, if at all such allegations would constitute the offence of defamation. The present prosecution cannot proceed because the complaint does not contain the essential elements or ingredients of the offence under Section 509 IPC."
(Emphasis supplied)
17. Ergo, in light of the foregoing understanding, this Court would now proceed with the evaluation of the material placed on record, in particular, the testimonies of various witnesses before the Ld. Trial Court. In this regard, this Court deems it pertinent to outrightly make reference to the deposition of the complainant/PW-1/'MD', who inter alia asserted in her deposition that in the year, 2013, in the days, around the festival of Holi, her/PW-1's husband had left her and got married with another lady, leaving the complainant with four children. PW-1 further deposed that her husband had abandoned her prior to Holi festival and that whenever she came out of her house for the purpose of her work, the appellant, who was her neighbor and correctly identified by PW-1 before the Ld. Trial Court, used to comment, "M****, I Love You, ab toh tera pati chor kar chala gaya ab tera raat din kaise katega". PW-1 further deposed that she objected to the same, however, the appellant smiled and replied, "kuch nahi hota". Correspondingly, as per the complainant, she moved from the spot as she did not want any issue at that time, however, 02-03 days after her objection, the appellant, called her/PW-1 to his house. PW-1 further avowed that when she entered the appellant's house, after listening to his/appellant's voice, with a view that he may be in need of something and being a neighbor, she/PW-1 found that the appellant was taking a bath. It was further deposed by PW-1 that she enquired the appellant, reason for calling her, however, the C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 27 of 65 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.07 16:14:47 +0530 appellant, instead of replying to her, showed his private organ to her/PW-1. Thereafter, as per PW-1, the appellant rushed towards her and pressed her breast, as well as asked her to get married with him as she was alone. Concomitantly, as per PW-1, the appellant threatened her by saying, "agar shadi nahi karegi toh bahut kuch ho jayega". PW-1 further asserted that she was a resident of Bihar and got afraid because of the incident, as she know that no one would support her, after listening of the incident. Markedly, in her deposition, PW-1 further avowed that 04-05 days thereafter, the appellant again approached her and showed a card to her asserting that the said card was related to an Advocate and that no one could harm him, as he had also become an Advocate. PW-1 asserted that she continued to remain silent/quiet on the incident as she was alone, however, 05-06 days thereafter, her/PW-1's daughter, namely, 'K' approached her and said, "mummy, khushiram chacha ne mujhe I love you bola tha". As per PW-1, when she asked her daughter that what had happened with her, she stated, "wo muje jism se chipkata hai or i love you bolta hai aur muje godi me baithakar apni pant ki chain khol leta hai or bolta hai ki uski susu wali jas jaghah pakad ke dekh". As per PW-1, she was informed by her said daughter that the appellant had touched her/'K's' private part too. Thereupon, PW-1 asserted that she decided, not to tolerate any further and got her complaint registered, However, since the police is asserted to have not taken any action on her/PW-1's complaint, she approached an Advocate, who typed PW-1's complaint (Ex. PW1/A, bearing PW-1's signatures at point A) to the SHO and she, forwarded the same, leading to the registration of the present FIR. PW-1 also deposed that after lodging the C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 28 of 65 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.07 16:14:50 +0530 complaint against the appellant, his/appellant's mother as well as wife made her/PW-1's life miserable as they were well known resident of the locality and she/PW-1 was an outsider, who had shifted from Bihar. PW-1 further correctly identified the case property (Ex. P1), being brown colour underwear, before the Ld. Trial Court.
18. Markedly, upon being cross-examined, by/on behalf of the appellant, PW-1 asserted as under;
"XXXXXX by Sh. ***, Ld. Counsel for accused. I am 37 years old. I have 07 children namely A****, B****, R*****, K*****, N****, R***** and K******. I was firstly marriage with Raghuvir, S/o Sh. Bengali, R/village Jha Jha but I do not remember the district and from the said wedlock, 03 children were born namely A****, B**** and R****.
Q. what is the name of your 2nd husband?
Objected by the Ld. APP for the state on the ground that it is not relevant to the present case. Heard. Question is disallowed being irrelevant. Q. How many times, you were married?
Objected by the Ld. APP for the state on the ground that it is not relevant to the preser case. Heard. Question is disallowed being irrelevant. Q. Whether you had taken divorce from your previous husband (s) before marriying again? Objected by the Ld. APP for the state on the ground that it is not relevant to the present case. Heard. Question is disallowed being irrelevant. Q. Can you disclose the names of the fathers of the above named children?
Objected by the Ld. APP for the state on the ground that it is not relevant to the preserit case. Heard. Question is disallowed being irrelevant. Q. what is the name of your current husband? A. Sh. Suresh.
q. How many children do you have from the wedlock of Suresh?
A one girl.
Q. when was she born?
C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 29 of 65 Digitally signed by ABHISHEK GOYAL ABHISHEK Date: GOYAL 2025.07.07 16:14:54 +0530
A. Objected by the Ld. APP for the state on the ground that it is not relevant to the present case. Heard. Question is disallowed being irrelevant. Q. Do you have any proof of your marriage with Suresh?
Objected by the Ld. APP for the state on the ground that it is not relevant to the present case. Heard. Question is disallowed being irrelevant. It is wrong to suggest that I am not married to Suresh but I am the legally wedded wife of Raj Kumar. Vol. Rajkumar had left me alongwith my children.
Q. what are the names of the children from Raj Kumar?
objected by the Ld. APP for the state on the ground that it is not relevant to the prese case. Heard. Question is disallowed being irrelevant. Q. Had you lodged the criminal complaint at PS Kashmere Gate against your husband R.. K****? A. Yes. The same was with regard to non payment of maintenance by him.
It is wrong to suggest that the said case had been got registered at my instance in respect of molestation of my daughter K**** by my husband Raj Kumar or that had got him falsely implicated in the said case. It is wrong to suggest that Raj Kumar had been arrested and remained in custody in the said case. Vol. He had remained in custody in a case of theft. It is further wrong to suggest that had got a false complaint institute against my husband Raj Kumar from my daughter K**** before Nari Raksha Samiti, NGO. I is further wrong to suggest that no action was taken on said complaint as the same was false.
I put it to you that you were having illicit relations with one Mr. Suresh withou taking divorce from your previous husband Raj Kumar and out of your said relations, one male child was born, objected by the Ld. APP for the state on the ground that it is not relevant to the present case. Heard. Suggestion is disallowed being irrelevant. It is correct that the Khushi Ram is my neighbour. It is further correct that Smt. Anita, Rakhi, Poonam, Inder Kala and Sharda Devi are my neighborers. It is wrong to suggest that above named ladies objected regarding visit of Mr. Suresh at my residence. Vol. Khushi Ram objected regarding the visit of Mr. C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 30 of 65 Digitally signed by ABHISHEK GOYAL ABHISHEK Date: GOYAL 2025.07.07 16:15:00 +0530 Suresh at my residence. Accused Khushi Ram and myself never altercated with each other on the issue of visit of Mr. Suresh. It is wrong to suggest that the present case has been registered on my false complaint as accused Khushi Ram raised objection regarding visit of Mr. Suresh at my residence. Q. I put it to you, you have mentioned your husband's name as Rajkumar on 11.09.2015, however, on the other hand, you have deposed today that your husband's name is Suresh and from the said wedlock, one female child was born?
A. My husband name is Suresh. At the time of filing of the case, my husband was Rajkumar but after 15-20 days, he left me.
Q. Have you show any document to prove the name of your husband as Raj Kumar at the time of registration of the present case?
A. Yes.
*** *** *** Today, I have brought my ID proof (voter ID). The same is Ex. PW1/D1 (OSR). In the said ID, the husband name of the witness is mentioned as Sh. Rajkumar. I do not know if court cases and litigations are pending between Vinod Kumar and Khushi Ram. Vinod Kumar was residing at the ground floor near Saiyad Baba Peer Masjid. At present, he is residing at Sindhi Mohalla, Mori Gate. I had never visited the house of Vinod Kumar at Sindhi Mohalla. I had visited the shop of the Vinod Kumar for purchasing some daily use articles i.e. milk and tea leaves. It is wrong to suggest that I had falsely implicated the accused in the present case at the instance of Vinod Kumar, who is in litigation with Khushi Ram. It is wrong to suggest that I have falsely implicated the accused in the present case. It is further wrong to suggest that my daughter has also falsely implicated the accused at my instance. It is wrong to suggest that I am deposing falsely..."
(Emphasis supplied)
19. Apposite at this stage to further refer to the deposition of PW-2/W/Ct. Jyoti, who proclaimed in her testimony that on 04.05.2013, she was posted as W/Ct. at PS Kashmere Gate and on the said day, the complainant, 'MD' along with her daughter and two lady Advocates, reached at the C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 31 of 65 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.07.07 16:15:04 +0530 police station. Further, as per PW-2, the IO recorded the complaint of the complainant, made an endorsement on the same and thereafter, handed over the same to Ct. Gajender for registration of FIR. Correspondingly, as per PW-2, thereafter, she/PW-2 along with the IO, complainant, complainant's daughter and two lady Advocates went to the residence of the complainant and at her/complainant's instance, the IO prepared the site plan, Ex. PW2/A, bearing PW-2's signatures at point A. PW-2 further deposed that the IO also recorded the statements of the complainant, her daughter and two lady Advocates, under Section 161 Cr.P.C. and in the meantime, Ct. Gajender reached at the spot along with the copy of FIR and original tehir, which were handed over to the IO. Thereafter, as per PW-2, the IO searched for the appellant, however, no clue of his whereabouts could be obtained. Correspondingly, PW-2 asserted that the IO recorded her/PW-2's statement, as well. Relevantly, in her cross examination, PW-2 deposed, as under;
"XXXXXX by Sh. ***, Ld. Counsel for accused. I cannot tell the names of lady advocates, who accompanied the complainant. I do not know whether the complainant had told the IO regarding the specific place of her house, where the accused misbehaved with the complainant. Accused did not misbehave with the complaint in my presence. It is wrong to suggest that I had not joined the investigation. It is further wrong to suggest that I am deposing falsely at the instance of the IO."
(Emphasis supplied)
20. Notably, PW-3/Ct. Jitendra Bharadwaj proclaimed before the Ld. Trial Court that on 23.05.2013, he was posted as Constable at PS. Kashmere Gate and on that day, he joined the investigation with IO/W/SI Veena Kumari. As per PW-3, he along with the IO, reached at Court Room no. 272, Tis Hazari C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 32 of 65 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.07.07 16:15:08 +0530 Court at around 01:25 pm on the said day, where the appellant was present along with his counsel. Thereafter, as per PW-3, IO moved an application for interrogation of accused Khushi Ram before the court. As per PW-3, at that point in time, complainant's daughter, 'K' was also present in the court along with the complainant. As per PW-3, both, the complainant and her daughter, informed them that the appellant used to misbehave/molest (galat harkat) with the complainant and her daughter. Further, as per PW-3, after the permission of the court, the appellant was interrogated by the IO as well as arrested vide arrest memo Ex. PW3/A and appellant's personal was conducted vide personal search memo Ex. PW3/B, both bearing PW-3's signatures at point A. PW-3 further avowed that the IO recorded the disclosure statement of the appellant (Ex. PW3/C), bearing PW-3's signatures at point A. After preparation of all the documents, as per PW-3, the IO moved an application for one day police custody remand of the appellant, which was granted by the court and the appellant was thereafter, got medically examined in Aruna Asaf Ali Hospital. It was further deposed by PW-3 that the appellant was also taken at his residence, i.e., J-57, Kucha Mohatar Khan, Mori Gate, Delhi-110006 and on the appellant's pointing out, the appellant produced a brown coloured underwear having mention 'TT Titanic' to the IO and the same was seized by the IO while putting the same in a white cloth pullanda sealed with the seal of 'VK' and the same was taken into possession vide seizure memo Ex. PW3/D, bearing PW-3's signatures at point A. As per PW-3, the seal after use was handed over to him/PW-3 and the pointing out memo was prepared at the instance of the appellant (Ex. PW3/E), bearing C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 33 of 65 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.07.07 16:15:16 +0530 PW-3's signatures at point A. Thereafter, they reached at the police station and the case property was deposited with the malkhana. PW-3 also correctly identified the case property as well as the appellant before the Ld. Trial Court. Significantly, in his cross examination, PW-3 inter alia asserted that at the time of recovery of the case property, no public persons were present, however, expressed his inability to recollect whether the IO had asked any public persons to join the investigating or whether she had given any written notice to any such public person. PW-3 further denied the suggestion in his cross examination that he had not visited the spot along with the IO or that they had seized the underwear of appellant in the lock-up of Kashmere Gate. Notably, the testimony of PW-3 was corroborated with the deposition of PW-5/MHC(M)(CP)/HC Kamlesh Kumar, who produced register no. 19 and proved entry no. 3302/13 dated 04.05.2013, PS Kashmere Gate, pertaining to deposit of case property in malkhana. Apposite to further note that PW-6/HC Subhash produced the particulars of previous involvements of the appellant (Ex. PW6/A) before the Ld. Trial Court, bearing PW-6's signatures at point A.
21. Germane for the purpose of the present discourse to also refer to the deposition of PW-4/SI Dhan Singh, who deposed that on 04.05.2013, he was posted as SI at PS Kashmere Gate and on that day, the complainant reached at the police station in the evening along with two lady Advocates namely Ms. Babita and Ms. Meenu. PW-4 further deposed that the complainant gave her complaint (Ex. PW1/A) and he/PW-4 made an endorsement on the said complaint, which is Ex. PW4/A, bearing PW-4's signatures at point A. Thereafter, as per PW-4, he handed over C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 34 of 65 Digitally signed by ABHISHEK GOYAL ABHISHEK Date: GOYAL 2025.07.07 16:15:24 +0530 the original tehrir to the duty officer for registration of FIR and after that, he/PW-4 along with the complainant, W/Ct. Jyoti and lady Advocates reached at the spot i.e. H. No. J-76, Kucha Mohatar Khan, Mori Gate, Delhi. PW-4 further deposed that he prepared the site plan at the instance of the complainant bearing PW-4's signatures at point B, and thereafter, he/PW-4 recorded the supplementary statement of the complainant as well as recorded the statements of said Advocates namely Babita and Meenu. PW-4 also asserted that on 05.05.2013, he collected the photocopy of Aadhar Card and School Card of the complainant's daughter 'K' and seized the same vide seizure memo Ex: PW4/B, bearing PW-4's signatures at point A. Subsequently, on 06.05.2013, as per PW-4, he collected the age proof documents of complainant's daughter from MCD School vide memo Ex. PW4/C, bearing PW-4's signatures at point A. Further, as per PW-4 on 06.05.2013, the statements of the complainant (Ex. PW4/D) and her daughter (Ex. PW4/E), under Section 164 Cr.P.C. and on 07.05.2013, the counselling of the complainant was conducted. Thereafter, as per PW-4, further investigation of the present case was handed over to W/SI Veena. PW-4 further correctly identified the appellant before the Ld. Trial Court. Apposite here to further refer the cross examination of PW-4, as under;
"XXXXXX by Sh. ***, Ld. Counsel for accused. I do not remember whether any 100 number call was made by the complainant or not. Those two lady advocates namely Ms. Babita and Ms. Meenu are the witness in the present case. I visited the spot with the complainant and the said lady advocates on 04.05.2013 in the evening around 05.00 pm. There were passers-by near the spot. There were residential houses adjacent to the J-76, Kucha Mohtar Khan, Mori Gate, Delhi. I asked the neighbours to join the C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 35 of 65 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.07.07 16:15:40 +0530 investigation but none had joined due to their personal reasons.
It is wrong to suggest that no public persons had joined the investigation because accused did not commit any crime and was falsely implicated in the present case. It is wrong to suggest that the accused has been falsely implicated in the present case at the instance of one Sh. Vinod Kumar.
I do not know the relation of Vinod Kumar with accused. I do not know whether said Vinod Kumar tried to implicated the accused in false women harassment case through his wife and daughter and later on, withdrawn the said complaints. I do not know whether the accused had filed a defamation civil suit against Sh. Vinod Kumar. I cannot say whether that the present complaint was filed against the accused at the instance of Sh. Vinod Kumar after filing of defamation suit.
I cannot say why the said advocates had become prosecution witnesses in the present case. It is wrong to suggest that Sh. Vinod Kumar had sent the said advocates in order to falsely implicate the accused in the present case and the another case. It is wrong to suggest that accused did not commit any wrong with the complainant and her daughter and he is falsely implicated in the present case at the instance of Vinod Kumar.
I never received any complaint on behalf of the complainant before 04.05.2013. It is wrong to suggest that I am deposing falsely."
(Emphasis supplied)
22. Apposite to further refer to the deposition of PW-7/ IO/Inspector Veena, who deposed that she was the second IO in the instant case and that the investigation was handed over to her on 09.05.2013. Further, as per PW-7, on 23.05.2013, she was intimated that the appellant was surrendering before the court, whereupon she/PW-7 along with Ct. Jitender reached at Court No. 272 of Tis Hazari Court Complex, Delhi and requested the court for interrogation as well as arrest of the appellant. PW-7 further deposed that after inquiry from the appellant, he was formally arrested. As per PW-7, the complainant, was also C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 36 of 65 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.07 16:15:44 +0530 present along with her daughter 'K' in the Court. PW-7 further proclaimed that she had recorded the statement of the appellant, which is Ex. PW3/C, bearing PW-7's signatures at point B. As per PW-7, one day police custody remand of the appellant was also taken, and the appellant was also taken to his medical examination along with Ct. Jitender. Thereafter, as per PW-7, the appellant was taken to H. No. J-57, Kucha Mohtar Khan, Mori Gate, Delhi and he/PW-7 prepared the pointing out memo at the instance of the appellant. Correspondingly, as per PW-7, at the appellant's instance, one underwear was seized from his house, which he claimed that he was wearing on the day of incident. PW-7 further proved the pointing out memo, Ex. PW3/E and the seizure memo, Ex. PW3/D both bearing PW-7's signatures at point B. Further, as per PW-7, the pullanda was seized with seal of 'VK' and the appellant was brought to the police station along with the pullanda. Thereafter, as per PW-7, the case property was deposited in the malkhana and she/PW-7 got the TIP proceedings of the case property done before Ld. M.M, Sh. Arvind Bansal. Further, PW-7 asserted of her preparing the chargesheet and filing the same before the court.
23. Markedly, in her cross examination, PW-7 asserted, as under;
"XXXXXX by Sh. ***, Ld. Counsel for accused. I had taken accused Khusi Ram at about 07:30 to 7:45 PM to his house. I had not made any public person as witness of seizure or pointing out. Vol. The ladies whom I met at the house of the accused were reluctant in becoming witness and engaging in any police proceedings. Only two-three ladies had gathered on the road beneath the house. It is wrong to suggest that 15-20 persons gathered at the spot. It is correct that the spot is residential area. It is wrong to suggest that the spot where I had taken accused was C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 37 of 65 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.07.07 16:15:47 +0530 crowded. It is wrong to suggest that I had not taken Khusi Ram to his residence and therefore, I had not made any public person/neighborer as witness of pointing out. It is correct that the seizure memo bears signature of police Constable as witness. I had inquired from the 4-5 nearby persons and I came to know that the accused person was habitually misbehaving with the woman residing nearby and usually was of quarrelsome nature. As per my knowledge, no case of misbehavior with woman was not lodged against accused until I investigated the present case. I cannot tell the names of those 4-5 persons, but as far as I recall one person who was having meat shop was also inquired by me. I do not remember whether the names of the persons were Rahul, Anita, Sunita, Sham Rao, Inder Kalan, Ram Sakhi, Sharda and Prema Devi. It might be that the names above mentioned were the names of the persons from whom I inquired. I do not remember whether complainant was present along with us at the time of taking the accused from his house. It is wrong to suggest that I had not taken accused to his house or that I had seized the underwear of accused while he was in judicial custody. As far as I remembered, the name of the husband of Ms. "M"
was Raj Kumar. I had not met said Raj Kumar during investigation. It is correct that Ms. "M" had told that her husband left her and the children and she was not aware where he was residing. I am not aware whether in absence of husband of Ms. "M" somebody namely Suresh Deepak used to visit her house. (objected to by Ld. APP as the question pertains to character of victim). I am not aware whether any quarrel occurred on the issue of Suresh visiting the hosue of complainant in absence of her husband and accused Khushi Ram and other locality person raised objection (objected to by Ld. APP as the question pertains to character of victim). It is wrong to suggest that accused has been implicated in a false case as he objected to the visit of Suresh at house of Ms. "M" in absence of her husband. I am not aware whether any matrimonial case was filed by Ms. M against her husband in Nari Raksha Samiti. I am not aware what investigation was undertaken by Ct. Ashok. Vol. Ct. Ashok has not participated in any investigation in present case. It is wrong to suggest that I had not placed the statements given by the neighborer in favour of accused Khusi Ram. Vol. I have not recorded the statement of public person/neighborer in present case. I had not sent the case property to FSL.
C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 38 of 65
Digitally
signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.07.07
16:15:51
+0530
It is wrong to suggest that accused Khusi Ram has been falsely implicated in the present case or that I am deposing falsely."
(Emphasis supplied)
24. Consequently, in light of the foregoing this Court would proceed with the determination of the rival contentions raised by the parties (by/on behalf of the accused persons, complainant and the State) before this Court. In this regard, it would be pertinent to outrightly deal with the contention/objection of the Ld. Counsel for the appellant, inter alia, to the effect that the conviction of the appellant could not have been premised on the sole testimony of the complainant/victim/PW-1 'MD' in the absence of corroboration from any independent witnesses. Appositely, in order to deal with the said contentions, this Court deems it pertinent 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, wherein the Hon'ble Court, while dealing with evidentiary value of the sole victim/prosecutrix, noted as under;
"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, 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) C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 39 of 65 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.07.07 16:15:54 +0530
25. Pertinent in respect of the foregoing to further refer to the decision of the Hon'ble High Court of Delhi in State (NCT of Delhi) v. Pratap Singh, 2016 SCC OnLine Del 3207 , wherein the Hon'ble Court in an akin 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)
26. Demonstrably, it is observed from above that it is a settled law that conviction for an offence of sexual nature/one affecting modesty of woman, can be based on the sole testimony of the prosecutrix. In fact, even on a general principle, it has been recurrently avowed6 by superior courts in a catena of decisions that there is no legal impediment in convicting a person on the sole testimony of a single witness if the version of such a witness is clear and reliable, reason underlying the same being; 'the evidence has to be weighed and not counted'. Notably so, in the instances of sexual offences, courts have even gone on to the extent to appreciate and declare7 that to seek corroboration to the testimony of the prosecutrix/victim, before relying upon the same would amount to adding insult to the injury sustained by such victim and have, consequently, deprecated such practice. Unmistakably, the reasons for the same can be easily inferred from the decision of the Hon'ble Supreme Court8 in State of Maharashtra v. Chandraprakash Kewalchand Jain, (1990) 1 SCC 6 Kusti Mallaiah v. State of A.P., (2013) 12 SCC 680.
7State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 and Munna v. State of M.P., (2014) 10 SCC 254 8 Reference also made to the decision of the Hon'ble Supreme Court in; Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (1983) 3 SCC 217.
C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 40 of 65
Digitally
signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.07.07
16:15:58
+0530
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)
27. Concurrently, this Court is also cognizant of the fact that the incidents of sexual offences usually occur in secrecy, out of public gaze and even in the cases where witnesses to such events exit, they may not be forthcoming in supporting the prosecution's case. Unmistakably, under such circumstances, to discard the sole testimony of a prosecutrix/victim, consistent in material particulars and withstanding the rigors of cross-
C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 41 of 65 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.07.07 16:16:02 +0530
examination, would amount to causing gross prejudice as well as aggravating the plight of such victim/prosecutrix on one hand, while acting as impetus for 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. Indisputably, 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 accused persons pertaining to the lack of corroboration in the testimony of the victim in the instant case, necessitates appreciation by this Court in light of the foregoing observations.
28. Correspondingly, in order to accurately appreciate the contention of Ld. Counsel for the accused persons pertaining to contradictions/discrepancies in the testimonies of various prosecution witnesses, it would be germane at this stage to 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 C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 42 of 65 Digitally signed by ABHISHEK GOYAL ABHISHEK Date: GOYAL 2025.07.07 16:16:08 +0530 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 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..."
(Emphasis supplied)
29. Similarly, the Hon'ble Apex Court in Rammi v. State of M.P., (1999) 8 SCC 649, while dealing with similar issue, remarked 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)
30. Patently, from a conjoint reading of the above, it is C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 43 of 65 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.07 16:16:12 +0530 unambiguously 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 law 9, 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 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 9 Appabhai v. State of Gujarat, 1988 Supp SCC 241 C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 44 of 65 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.07 16:16:15 +0530 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)
31. Consequently, to recapitulate, in order to discard 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 for 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. Ergo, in light of the foregoing, when the testimonies of the witnesses brought on record, in particular that of the complainant/PW-1 'MD'/victim is scrupulously analyzed, it is observed that the victim unambiguously deposed that in the year, 2013, in the days, around the festival of Holi, her/PW-1's husband had left her and got married with another lady, leaving the complainant with four children. PW-1 further deposed that her husband had abandoned her prior to Holi festival and that whenever she came out of her house for the purpose of her work, the appellant, who was her neighbor and correctly identified by PW-1 before the Ld. Trial Court, used to comment, "M****, I Love You, ab toh tera pati chor kar chala gaya ab tera raat din kaise katega". PW-1 further deposed that she objected to the same, however, the appellant smiled and replied, "kuch nahi hota". Correspondingly, as per the complainant, she moved from the spot as she did not want any issue at that time, however, 02- 03 days after her objection, the appellant, called her/PW-1 to his C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 45 of 65 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.07.07 16:16:19 +0530 house. PW-1 further avowed that when she entered the appellant's house, after listening to his/appellant's voice, with a view that he may be in need of something and being a neighbor, she/PW-1 found that the appellant was taking a bath. It was further deposed by PW-1 that she enquired the appellant, reason for calling her, however, the appellant, instead of replying to her, showed his private organ to her/PW-1. Thereafter, as per PW-1, the appellant rushed towards her and pressed her breast, as well as asked her to get married with him as she was alone. Concomitantly, as per PW-1, the appellant threatened her by saying, "agar shadi nahi karegi toh bahut kuch ho jayega" . Pertinent to note that the complainant/PW-1 had been consistent, thoroughly, in her initial complaint (Ex. PW1/A) as well as her statement recorded under Section 164 Cr.P.C., in as much as the incident in question is concerned. In fact, this Court is in concurrence with the observation of the Ld. Trial Court that the complainant, steadily deposed inter alia regarding the appellant's calling her/the complainant to his house, around 2-3 days nearing the festival of Holi in the year, 2013, by calling her name, displaying his private parts to the complainant as well as pressing the breast of the complainant at that point in time. Correspondingly, this Court further concurs with the observation of the Ld. Trial Court that nothing material has come forth despite the cross examination of the complainant, at the behest of the appellant. In fact, as aforenoted, most of the questions put forth by/on behalf of the appellant were objected to by the Ld. Addl. PP for the State and were consequently, disallowed by the Ld. Trial Court as being irrelevant. Clearly, under such circumstances, even in the considered opinion of this Court, the C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 46 of 65 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.07 16:16:23 +0530 appellant has not been able to shake the creditworthiness of the deposition of the complainant in the instant case. In this regard, it is further observed that though the Ld. Counsel for the appellant has vehemently asserted that the complainant proclaimed of the presence of appellant's wife and children at the time of alleged commission of offence and that it was not possible for the appellant to commit the said offence in the present of his wife and children. However, on a scrupulous analysis of material placed on record, it is observed that nowhere in her deposition or any of her statements, the complainant proclaimed of presence of any such persons at the alleged time of occurrence. It is further the contention of Ld. Counsel for the appellant that the case of the prosecution stands belied by the fact that PW-2 did not disclose the name of the lady Advocates, who had accompanied the complainant. However, PW-4/SI Dhan Singh, in his testimony deposed that on 04.05.2013, when he was posted as SI at PS Kashmere Gate, the complainant reached at the police station in the evening along with two lady Advocates namely Ms. Babita and Ms. Meenu. Pertinently, it is also seen from the record that both the said lady Advocate were cited as witnesses at S. Nos. 2 and 3, respectively, of the chargesheet. However, during the course of proceedings before the Ld. Trial Court, the said witnesses were dropped vide order dated 28.08.2017 and 26.03.2018, respectively, on the observation that they were representing the complainant and merely formal in nature, as they had merely accompanied the complainant to the police station.
32. Needless at this stage to further reiterate/observe that even otherwise, the 'so called' discrepancies/inconsistencies in C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 47 of 65 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.07 16:16:26 +0530 the testimony of the complainant, in the considered opinion of this Court, are not material or significant so as to belie the sterling nature of the complainant's deposition. Even otherwise, this Court deems it apposite to note that the appellant never confronted the complainant either with her complaint or statement recorded under Section 164 Cr.P.C. Clearly, the law is settled that the 'so called' improvements in the testimony of victim vis-à-vis her earlier statements, cannot be considered by this Court at this stage, in the absence of any confrontation of the witness in terms of the provisions under Section 161/162 Cr.P.C. read with Section 145 of the Indian Evidence Act, 1872/Evidence Act. Reference in this regard, is made to the decision of the Hon'ble Supreme Court in V.K. Mishra v. State of Uttarakhand, (2015) 9 SCC 588, wherein the Hon'ble Court, after duly considering various provisions under law, in particular that under Section 161/162 Cr.P.C. and Section 145 of the Evidence Act, observed as under;
"16. Section 162 CrPC bars use of statement of witnesses recorded by the police except for the limited purpose of contradiction of such witnesses as indicated there. The statement made by a witness before the police under Section 161(1) CrPC can be used only for the purpose of contradicting such witness on what he has stated at the trial as laid down in the proviso to Section 162(1) CrPC. The statements under Section 161 CrPC recorded during the investigation are not substantive pieces of evidence but can be used primarily for the limited purpose: (i) of contradicting such witness by an accused under Section 145 of the Evidence Act; (ii) the contradiction of such witness also by the prosecution but with the leave of the Court; and (iii) the re-examination of the witness if necessary.
17. The court cannot suo motu make use of statements to police not proved and ask questions with reference to them which are inconsistent with the testimony of the witness in the court. The words C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 48 of 65 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.07 16:16:30 +0530 in Section 162 CrPC "if duly proved" clearly show that the record of the statement of witnesses cannot be admitted in evidence straightaway nor can be looked into but they must be duly proved for the purpose of contradiction by eliciting admission from the witness during cross-examination and also during the cross-examination of the investigating officer. The statement before the investigating officer can be used for contradiction but only after strict compliance with Section 145 of the Evidence Act that is by drawing attention to the parts intended for contradiction.
*** *** ***
19. Under Section 145 of the Evidence Act when it is intended to contradict the witness by his previous statement reduced into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing can be used. While recording the deposition of a witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his cross-examination. The attention of witness is drawn to that part and this must reflect in his cross-
examination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need to further proof of contradiction and it will be read while appreciating the evidence. If he denies having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the deposition. By this process the contradiction is merely brought on record, but it is yet to be proved. Thereafter when investigating officer is examined in the court, his attention should be drawn to the passage marked for the purpose of contradiction, it will then be proved in the deposition of the investigating officer who again by referring to the police statement will depose about the witness having made that statement. The process again involves referring to the police statement and culling out that part with which the maker of the statement was intended to be contradicted. If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the court cannot suo motu make use of statements to police not proved in compliance with Section 145 of the Evidence Act that is, by drawing attention to the parts intended for contradiction."
(Emphasis supplied)
C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 49 of 65
Digitally signed
by ABHISHEK
ABHISHEK GOYAL
Date:
GOYAL 2025.07.07
16:16:33
+0530
33. Here, it is further pertinent to note that the Ld. Counsel for the appellant/appellant has endeavored to belie the version put forth by the complainant, whilst questioning her character, in particular, by asserting that the deposition of the complainant loses its creditworthiness owing to her alleged relationship with several partners and non-disclosure of the (alleged) correct name of her spouse. However, the said contention too fails to impress this Court in view of the repeated avowals of the superior court. In fact, even Section 53A of the Evidence Act, explicitly provides that in a prosecution for an offence inter alia under Sections 354/354A IPC, "...or for attempt to commit any such offence, where the question of consent is in issue, evidence of the character of the victim or of such person's previous sexual experience with any person shall not be relevant on the issue of such consent or the quality of consent..." Correspondingly, this Court is not convinced with the submissions of the appellant that mere non-disclosure of her exact marital status by the complainant in the instant case would have any bearing to the instant proceedings. Clearly, such non- disclosure, in the considered opinion of this Court, does not belie her consistent version put forth before the Ld. Trial Court regarding the incident in question and the role played by the appellant, while committing the offence(s). Apposite to further note that this Court finds itself difficult to assent to/concur with the submission of the Ld. Counsel for appellant that the acquittal of the appellant in the case emanating out of FIR No. 115/2013 would entail an automatic acquittal in the present case as well, considering that the trials of both the said cases are dependent on C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 50 of 65 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.07 16:16:37 +0530 the material/evidence brought forth before the respective courts. Needless in this regard to further observe that not only was any of the prosecution witnesses in the present case, confronted with the alleged discrepancy brought forth in the said case (FIR No. 115/2013), rather, even the material placed on record; testimonies of witnesses produced; and basis of allegations against the appellant herein as well as the victims in both the cases, i.e., present FIR and FIR No. 115/2013 are admittedly dissimilar, which, in the considered opinion of this Court, would not have bearing on each other. Needless in this regard to reiterate that the victim/complainant before the Ld. Trial Court consistently deposed regarding the appellant's calling her/the complainant to his house, around 2-3 days nearing the festival of Holi in the year, 2013, displaying his private parts to the complainant as well as pressing the breast of the complainant at that point in time. Correspondingly, this Court reiterates that nothing material has emerged/come forth in the cross- examination of the complainant, so as to belie her unswerving deposition/assertion against the appellant. Further, in light of the foregoing, this Court is not convinced with the submissions of the Ld. Counsel for the appellant that non joining of public witnesses to the incident in question would have material bearing, considering the consistent stand of the prosecutrix and the aforenoted judicial dictates asserting that in the incidents of sexual offences, the public witnesses are mostly wanting as such offences usually take place in secrecy and the public witnesses may not be forthcoming to tender evidence, even if available. Correspondingly, as aforenoted, the superior courts have asserted that to seek corroboration in such situation may amount to C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 51 of 65 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.07.07 16:16:40 +0530 harassment of the victim and adding insult to the injury sustained by her/such victim.
34. In as much as the contention of the Ld. Counsel for the appellant pertaining to delayed reporting of the incident in question by the complainant is concerned, this Court unambiguously observes that from a conscientious perusal of the material placed on record, the reasons for such delay have been explained by the complainant as her being alone owing to her husband's leaving, responsible for her four daughters and the social stigma, which would have ensued, had she reported the incident. In fact, as aforenoted, when she came to know of occurrence with her daughter, 'K' by the appellant, she could not to tolerate any further and got her complaint registered. Clearly, under such circumstances, this Court is of the considered opinion that the delayed reporting would not belie the version of the complainant in the instant case. In fact, this Court is conscious that the superior courts have persistently remarked that in the instances/incidents of sexual offences/offences of sexual tenor, 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 C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 52 of 65 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.07.07 16:16:44 +0530 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 if any explanation has been offered for the delay and, if offered, whether it is satisfactory"
(Emphasis supplied)
35. Clearly, upshot of the foregoing discussion is that ordinarily the victim/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;
"24. ...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 C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 53 of 65 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.07 16:16:49 +0530 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)
36. 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. As aforenoted, in the instance case, the complainant has explained the reasons for not agitating her concerns earlier and despite her such assertion, nothing has been brought forth in the cross-examination to belie the assertion of the complainant.
37. Correspondingly, here it pertinent to deal with the contention of the Ld. Counsel for the appellant relating to present proceeding being malicious and emanating out of ill-will. However, upon conscientious perusal of the material placed on record, the said contention of the Ld. Counsel for the appellant, does not find favour with this Court. In this regard, it is pertinent to outrightly refer to the statement of the appellant, record in terms of the provisions under Sections 281/313 Cr.P.C., wherein the appellant inter alia proclaimed as under;
"...Q-13. Do you have anything else to say? A. I am innocent and falsely implicated in the present case by the complainant. Two ladies namely Anita, Sunita @ Rakhi of the same locality raised C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 54 of 65 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.07.07 16:16:53 +0530 objections regarding the repeated visits of one person namely Suresh @ Deepak, in the absence of husband of the complainant, at her residence, even at the odd hours of the night. Both of them requested me to ask the complainant for not allowing the said person in the absence of her husband and thereafter I requested the complainant for not allowing Mr. Suresh to visit her residence, in her husbands absence as it would have adverse effect on the residents of the locality including young ladies and girls. The husband of the complainant namely, Raj Kumar, had gone to his native place, at Bihar and before his departure, he requested me to take care of his house as I am adjoining neighbour of the complainant. Ram Sakhi, Shyam Rao, Sharda Devi, Chander kala, Inder kala, Prema Devi and Sita bai also requested the complainant to mend her behaviour and not to allow stranger in her house in the absence of her husband and when the complainant failed to respond, they also went to Police Post Mori gate. At the said Chowki one Police Official Ashok and other one namely Ramesh were found and all the public persons reported the actual state of affairs and objection regarding the visit of stranger at the residence of the complainant. Complainant also visited the police post and leveled the false allegations against me but on inquiry I was let off by the police officials. Thereafter, IO Dhan Singh visited the locality of Mori Gate and made inquiry from the residents. Thereafter, one police official Mr. Ashok visited the locality and recorded the statements of Ram Sakhi, Shyam Rao, Sharda Devi, Chander kala, Inder kala, prema Devi and Sita bai, who stated that the only dispute was relating to the visit of stranger at the house of the complainant in the absence of her husband and that there was no case of molestation by me. Thereafter, twice statements of the residents of the locality were recorded by the police officials but they were not produced before this hon'ble court with malafide intention to involve me in false case. I have also come to know that during the proceedings of the present case the complainant has given birth to one female child from outside the wedlock and with a stranger namely Suresh @ Deepak. There is civil suit pending between myself and my cousin brother Ramesh and in order to pressurize me to withdraw the said civil suit, I have been involved in the present case at the instance of complainant who is associate C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 55 of 65 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.07 16:16:57 +0530 of Mr. Vinod. I have been falsely implicated by the complainant as well as her daughter also namely 'K'."
(Emphasis supplied)
38. Notably, it is seen from above that the appellant has asserted regarding his false implication in the instant case at the behest of the complainant on the ground that he had objected to the relationship of the complainant with one Suresh on the asking of other neighbours of the locality. Concomitantly, in variance to the said defence, the appellant further proclaimed before the Ld. Trial Court that he was falsely roped in the present case due to one civil litigation pending between him and his cousin brother and that the complainant, in order to pressurize the appellant at the instance of one Vinod filed the present case. In fact, the appellant also produced defence witness, i.e., DW-1/Smt. Sharda and DW-2/Ms. Anita in order to buttress his case/defence pertaining to his false implication owing to his objection on the relationship between the complainant and Suresh. Correspondingly, during the cross-examination of prosecution witnesses, in particular that of PW-1 and PW-4, the appellant suggested to the said witnesses that the appellant was falsely implicated in the present case by the complainant at the behest of one Vinod Kumar, which the said witnesses denied. However, on a careful analysis of the material brought forth on record by the appellant, this Court concedes with the finding of the Ld. Trial Court that the appellant's defence fails to inspire confidence. In this regard, it is outrightly noted that none of the said defence witnesses, assert regarding the pendency of any civil suit or of any malicious act on the part of the complainant to falsely implicate the appellant in the instant case, while acting in connivance with one, Vinod. In fact, even the complainant, C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 56 of 65 Digitally signed by ABHISHEK GOYAL ABHISHEK Date: GOYAL 2025.07.07 16:17:01 +0530 denied the suggestion in her cross examination of her visiting the house of Vinod Kumar at Sindhi Mohalla or acting in connivance with him so as to implicate the appellant in the instant case. However, despite the same, neither any evidence of civil dispute between the appellant and Vinod Kumar or of any collusion between the complainant and Vinod Kumar have been brought forth on record. In the alternate, as aforenoted, the appellant asserted that he objected to the complainant's relationship with one Suresh. However, the exact date, time and place, when such incident happened is not forthcoming under the statement of the complainant, recorded under Section 281/313 Cr.P.C. Even otherwise, whilst the appellant asserted that one Anita raised objection to visit of Suresh in the complainant's house, however, DW-2/Anita did not depose anything of the likes in her testimony before the Ld. Trial Court. In fact, upon being cross examined on behalf of the State, DW-2 specifically asserted that she was not aware of the reason of quarrel between the complainant and the appellant as she had left for her household work. Correspondingly, DW-2 asserted that she was not aware, if the appellant had misbehaved with the complainant after she left and also that she was not aware about the personal difference between the complainant and the appellant. Clearly, the version put forth by DW-2, even in the considered opinion of this Court, does not come to the aid and rescue of the appellant in the instant case. Concomitantly, the deposition of DW-1 would not aid the case of the appellant as being extremely vague, being bereft of particulars of the date and particulars of the alleged incident of quarrel between the complainant and the appellant or of her visiting the police station. In fact, DW-1 despite expressing C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 57 of 65 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.07 16:17:05 +0530 awareness of the alleged incident, even failed to disclose the particular/residential address of the complainant upon being cross examined. Ergo, under such circumstances, this Court reiterates that the defence put forth by the appellant is not only extremely vague, rather, unappealing to the senses of this Court.
39. 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, in the considered opinion of this Court, allegations levelled/charges in question stand duly proved against the appellant herein. In fact, from the aforesaid, it is proved 'beyond reasonable doubt' that the appellant, intentionally 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; assaulted and/or used of criminal force to the complaint/prosecutrix, besides made physical contact and advances involving unwelcome and explicit sexual overtures towards the complainant, by displaying to the complainant, his/appellant's private part as well as pressing her breasts, thereby, made himself liable for the offences punishable under Sections 354 and 354A IPC. Correspondingly, in the said process and by gestures so intended, i.e., by displaying his private organ to the complainant, asking her to marry him as she was alone, besides threatensing her by saying, "agar shadi nahi karegi toh bahut kuch ho jayega", the appellant also made himself liable for the offences punishable under Section 509 IPC. Here, it is further pertinent to refer to the decision of Hon'ble Kerala High Court in M.M. Haries v. State of Kerala, Crl. MC No. 9717 of 2002, dated 16.02.2005: 2005 Cri. LJ 3314, wherein the Hon'ble Court, C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 58 of 65 Digitally signed by ABHISHEK GOYAL ABHISHEK Date: GOYAL 2025.07.07 16:17:09 +0530 explicated the meaning of term, 'gesture' under Section 509 IPC by inter alia observing, as under;
"8. Then the question is whether it will come within the expression 'making gesture' used in section 509 IPC. But, the word `gesture' is ordinarily used to refer to making of body signs implying movement of the limbs etc. It is used to refer to body-language. But, writing of letters does not involve any body language and hence it may apparently appear that such act will not amount to `making gesture' as referred to in section 509 IPC. But, what does the expression `gesture' actually mean? Lord Denning, an English judge cautioned in Seaford Court Estates's case (vide 1949 2 All ER
155) that `the English language is not an instrument of mathematical precision'. To an Indian judge, English is even more intrinsic being a foreign language. So, to understand the real meaning of an English word, I shall safely depend upon the dictionary first.
9. A reference to the dictionary is inevitable in this case because the word `gesture' is not defined under the Indian Penal Code. The meaning of the word `gesture' as per Concise Oxford Dictionary, eighth edition is, "a significant movement of a limb or the body; the use of such movements esp. to convey feeling or as a rhetorical device; an act to evoke a response or convey intention". As per Collins Cobuild `English Dictionary for advanced learners' third edition, `gesture' is "something that you say or do in order to express your attitude or intentions, often something that you know will not have much effect" As per Law Lexicon' the word `gesture' means "a posture or movement of the body;
an action expressive of the sentiment or passion of intended to show inclination or disposition."
10. It is thus clear from the above discussion that the word `gesture' refers not merely to body signs. Though the word `gesture' is ordinarily used to mean movement of the limbs or body to convey a person's feelings, it can also connote an act done by a person to convey his intentions. According to dictionary meaning, an act done by a person to express his attitude or intentions also is a `gesture'. A person can express his attitude or convey his intentions in a number of ways. For example, by speaking, giving, looking, writing etc., etc. In that sense of the word, a C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 59 of 65 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.07.07 16:17:13 +0530 person can make a gesture by doing an act without involving any body signs."
(Emphasis supplied)
40. In as much as the aspect of sentence awarded to the appellant is concerned, this Court deems it apposite to note that though, the penal provisions under law/IPC, prescribe for penalties to be imposed for offences, however, no harmonized strategies exist for the manner and quantum of sentence which may be awarded to an accused in each case. In fact, law provides for a considerable relaxation/discretion to the Courts at the time of awarding sentence, which in the light of persistent avowals of the superior courts10, has to be exercised, mindful of such parameters. Indisputably, the inclination of courts is usually tilted towards reformative and rehabilitative approach towards the accused, however, superior court have also incessantly cautioned that sentencing should be adequate, just, and reasonable, for exercising undue sympathy, by imposing inadequate sentence may often result into causing more harm to the justice system. In this regard, reference is made to the decision of the Hon'ble Supreme Court in Hazara Singh v. Raj Kumar, (2013) 9 SCC 516, wherein the Hon'ble Court observed as under;
"17. We reiterate that in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public 10 'X' v. State of Maharashtra, (2019) 7 SCC 1; and Sunil Dutt Sharma v. State (Govt. of NCT of Delhi), (2014) 4 SCC 375.C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 60 of 65 Digitally signed by ABHISHEK
ABHISHEK GOYAL Date:
GOYAL 2025.07.07
16:17:16
+0530
confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment."
(Emphasis supplied)
41. Similarly, the Hon'ble Supreme Court in Raju Jagdish Paswan v. State of Maharashtra, (2019) 16 SCC 380 , while iterating the objective behind sentencing enunciated as under;
"9. The maintenance of peace, order and security is one of the oldest functions of the civil society. The imposition of penal sanctions on those who have infringed the rules by which a society has bound itself are a matter of legitimate interest to the members of the society...Punishment is the just desert of an offender. The society punishes not because it has the moral right to give offenders what they deserve, but also because punishment will yield social useful consequences: the protection of society by incapacitating criminals, the rehabilitation of past offenders, or the deterrence of potential wrongdoers...The purposes of criminal sentencing have traditionally been said to be retribution, deterrence and rehabilitation. To these there may now perhaps be added: incapacitation (i.e. putting it out of the power of the offender to commit further offences) and the maintenance of public confidence..."
(Emphasis supplied)
42. Apposite to further observe that besides the resolute affirmations of the superior courts, inclined towards the grant of just and appropriate sentence, there has also been a cautionary word11 that mere long pendency of case is no ground to award lesser sentence. Needless to mention, courts 12 have also declared that an offence which affects the morale of the society should be 11 State of M.P. v. Ghanshyam Singh, (2003) 8 SCC 13.
12State of M.P. v. Bablu Natt, (2009) 2 SCC 272 C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 61 of 65 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.07 16:17:20 +0530 dealt with a heavy hand. Further, the practice of awarding sentence, less than the minimum prescribed under law has been assiduously deprecated by the Hon'ble Supreme Court13 and even in cases, where discretion is granted/afforded to the courts under law to show some relaxation even in the cases where minimum sentence is prescribed, courts are cautioned to take due consideration of just, proper, adequate and sufficient reasons to do so. Reference in this regard is made to the decision of the Hon'ble Supreme Court in State of M.P. v. Babbu Barkare, (2005) 5 SCC 413, wherein the Hon'ble Court inter alia noted as under;
"19. In both sub-sections (1) and (2) of Section 376 minimum sentences are prescribed.
20. Both in cases of sub-sections (1) and (2) the court has the discretion to impose a sentence of imprisonment less than the prescribed minimum for "adequate and special reasons". If the court does not mention such reasons in the judgment there is no scope for awarding a sentence lesser than the prescribed minimum.
21. In order to exercise the discretion of reducing the sentence the statutory requirement is that the court has to record "adequate and special reasons" in the judgment and not fanciful reasons which would permit the court to impose a sentence less than the prescribed minimum. The reason has not only to be adequate but also special. What is adequate and special would depend upon several factors and no straitjacket formula can be indicated . What is applicable to trial courts regarding recording reasons for a departure from minimum sentence is equally applicable to the High Court. The only reason indicated by the High Court is that the accused belonged to rural areas. The same can by no stretch of imagination be considered either adequate or special. The requirement in law is cumulative."
(Emphasis supplied)
43. Ergo, in light of the aforesaid observations and 13 Harendra Nath Chakraborty v. State of W.B., (2009) 2 SCC 758 C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 62 of 65 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.07.07 16:17:25 +0530 dictates, as well as considering the provisions the provisions under law and the arguments addressed, this Court resolutely declared that in light of the factual scenario of the present case and the offences involved, especially being further cognizant of the fact that the offences in the instant case were directed against a woman, Ld. Trial Court had acted quite leniently by awarding minimum sentence, prescribed under law for the offences under Section 354/354A/509 IPC to the appellant. Quite understandably, considering that the purpose of sentencing is not only to punish the errant behavior but to also have deterrent effect on the society, the appellant does not, in the considered opinion of this Court, deserves any indulgence at this stage, even in the aspect of sentence so awarded by the Ld. Trial Court.
44. Conclusively, in view of the above discussion, the present appeal deserves to be rejected/dismissed and is hereby dismissed. As a corollary, the judgment dated 24.12.2020 passed by Ld. MM (Mahila Court)-03, Central, Tis Hazari Courts, Delhi in case bearing 'State v. Khushi Ram, Cr. Case No. 290823/2016', arising out of FIR No. 99/2013, PS. Kashmere Gate, under Sections 354/354A/509/506 IPC, convicting the appellant for the offences punishable under Sections 354/354A/509 IPC is upheld. However, the consequent order of sentence dated 12.01.2021, awarding the appellant; rigorous imprisonment for a period of 02 (two) year along with fine of Rs. 2,000/- (Rupees Two Thousand only), in default of payment of which fine, to undergo simple imprisonment for a period of 30 (thirty) days for the offence under Section 354 IPC; rigorous imprisonment for a period of 02 (two) years along with fine of Rs. 2,000/- (Rupees Two Thousand only), in default of payment C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 63 of 65 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.07 16:18:20 +0530 of which fine, to undergo simple imprisonment for a period of 30 (thirty) days for the offence under Section 354A IPC; and rigorous imprisonment for a period of 02 (two) years for the offence under Section 509 IPC, is modified only to the extent that instead of rigrous imprisonment for a period of 02 (two) years for the offence under Section 509 IPC, the appellant would undergo simple imprisonment for a period of 02 (two) years for the offence under Section 509 IPC. Needless to reiterate that the sentences shall run concurrently, besides the appellant would be entitled to the benefit under Section 428 Cr.P.C./Section 468 Bharatiya Nagarik Suraksha Sanhita, 2023/BNSS. Further, it is directed that the fine deposited by the appellant be released to the victim/complainant, as compensation. Needless to further mention that though it holds highest regard for the decisions relied upon by the Ld. Counsel for the appellant in support of his contentions, however, the same would not come to the aid of the appellant, in the manner as proposed, as the facts and circumstances of the present case are clearly distinguishable.
45. Consequently, the appellant, Khushi Ram is directed to surrender before the Ld. Trial Court within a period of 07 (seven) days from today for serving the sentence/remainder period thereof.
46. Trial Court Record be sent back along with a copy of this judgment with direction to proceed as per law. Copy of this order/judgment be also given dasti to the appellant. Further, compliance of the decision of the Hon'ble Supreme Court in Suhas Chakma v. Union of India (UOI) & Ors., MANU/SC/1147/2024 has been carried out. Further, file bearing SC No. 27855/2016, arising out of FIR No. 115/2013 be sent C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 64 of 65 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.07 16:18:27 +0530 back to the concerned record room.
47. Appeal file be consigned to record room after due compliance.
Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.07.07 16:18:33 +0530 Announced in the open Court (Abhishek Goyal)
on 07.07.2025. ASJ-03, Central District, Tis Hazari Courts, Delhi C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 65 of 65