Delhi District Court
Ram Dutt Joshi vs The State on 30 August, 2025
IN THE COURT OF SH. ABHISHEK GOYAL, ADDITIONAL
SESSIONS JUDGE-03, CENTRAL DISTRICT, TIS HAZARI
COURTS, DELHI
CNR No.: DLCT01-014924-2019
CRIMINAL APPEAL No.: 440/2019
RAM DUTT JOSHI,
S/o. Shri. Madan Raj Joshi @ Mohan Lal Joshi,
R/o. House No. T-51,
Road No. 20, Baljeet Nagar,
Delhi.
Also at; Village Oddabalalo,
PS. Mijulkana, Distt. Pithora Garh,
Uttarakhand. ... APPELLANT
VERSUS
STATE (GOVT. OF NCT OF DELHI) ... RESPONDENT
Date of filing : 01.11.2019
Date of institution : 02.11.2019
Date when judgment was reserved : 14.07.2025
Date when judgment is pronounced : 30.08.2025
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 11.09.2019 (hereinafter referred to as 'impugned judgment'), passed by learned Metropolitan Magistrate (Mahila Court)-01/Ld. MM (Mahila Court)-01, Central, Tis Hazari Courts, Delhi (hereinafter referred to as the 'Ld. Trial Court/Ld. MM') in case bearing 'State v. Ram Dutt Joshi, Cr. Case No. 10699/2017 ', arising out of FIR No. 189/2013, PS. Rajinder Nagar, under Sections 354A/457 of the Indian Penal Code, 1860 ( hereinafter referred to as 'IPC'), convicting the appellant for the offences punishable under Sections 354A/457 IPC, and the consequent order of C.A. No. 440/2019 Ram Dutt Joshi v. State (GNCT of Delhi) Page 1 of 50 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.08.30 15:36:33 +0530 sentence dated 04.10.2019 (hereinafter referred to as 'impugned order'), passed by the Ld. Trial Court, awarding the appellant; rigorous imprisonment for a period of 01 (one) year for the offence under Section 354A IPC; and rigorous imprisonment for a period of 01 (one) year for the offence under Section 457 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. Correspondingly, the appellant was directed to pay a sum of Rs. 40,000/- (Rupees Forty Thousand only), as compensation to the victim/prosecutrix, within a period of two months from the said order/impugned order, failing which, the appellant was directed to undergo, simple imprisonment for a period of one month (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 the intervening night of 21/22.09.2013, an intimation of incident was received from house no. No. 3/13, Old Rajinder Nagar, Delhi (hereinafter referred to as the 'spot'), which was marked to the concerned police official in the morning of 22.09.2013. As per the said intimation, a request was made by the caller to reach at the said spot. Upon this, the concerned police officials reached at the spot and met with the complainant/prosecutrix, namely, Smt. 'L1' (hereinafter referred to as the 'complainant/prosecutrix/victim'). It is further the case of the prosecution that at that point in time, one person was found overpowered at the spot. Correspondingly, the complainant is asserted to be present at the said spot along with other 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. 440/2019 Ram Dutt Joshi v. State (GNCT of Delhi) Page 2 of 50 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.08.30 15:36:36 +0530
persons/construction labourers and the building in which the said persons were found, was determined to be under-construction. Concomitantly, it was apprised to the said police officials that the apprehended person had molested the complainant, while she was sleeping during the early hours of 22.09.2013. Consequently, the statement of the prosecutrix was recorded wherein she inter alia proclaimed that for a period of around two years, prior to the incident, she was residing as well as working with her husband in Delhi, in an under-construction building at plot no: 3/13, Old Rajinder Nagar. The complainant further proclaimed that in the intervening night of 21/22.09.2013, she was sleeping with her husband and children on the first floor of the said building (दिनांक 21-22/09/13 के रात को में अपने पति और बच्चों के साथ इसी Building के प्रथम तल पर सोई थी). It is further chronicled in the statement of the complainant that that while she was sleeping, she felt that someone was rubbing her feet, whereupon she raised an alarm and she saw that one person was trying to flee from the spot (रात के वक्त सोते समय मुझे ऐहसास हुआ कि कोई मेरा पैर सहला रहा है मैं चिल्लाई तो देखा कि कोई एक आदमी भागने कि कोशिश कर रहा हैं). The complainant further avowed that her husband awoke pursuant to her scream/alarm, grabbed hold of the said person and apprehended him (मेरे पत्ति मेरे चिल्लाने से उठ चुके थे। उनहोने उस व्यक्ति का पैर पकड़ लिया व उसे काबू किया). As per the complainant, she called out for the guard, who reached there and made a call to munshi. However, since it was late at night (around 02:00 a.m.) and munshi was busy in some work, he/munshi reached there at around 07:00 a.m. ( मैने चौकीदार को आवाज लगाई जो यह उपर आ गया व उसने Munshi को phone किया जरा C.A. No. 440/2019 Ram Dutt Joshi v. State (GNCT of Delhi) Page 3 of 50 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.08.30 15:36:40 +0530 साय रात के 2 बज रहे थे Munshi साहब सुबह 7 बजे आये क्योकिं वे किसी काम में व्यस्त हो गये थे). As per the complainant, they felt it appropriate to wait for munshi as they were new to Delhi and upon reaching at the spot, munshi is asserted to have made a call to the police officials. Consequently, the complainant proclaimed that upon the police officials' reaching there, the apprehended person was handed over to them.
2.1. Notably, in light of the aforesaid facts and circumstances and on the basis of the complainant's complaint, the instant FIR came to be registered, and investigation ensued. Relevantly, during the course of investigation, disclosure statement of the accused was recorded. It is the case of the prosecution that during the ensuing investigation, the complainant shifted from the place where she was temporarily accommodated and subsequently, she could be traced only on 12.06.2016 and her statement was, accordingly, got recorded, in terms of the provisions under Section 164 Cr.P.C. Correspondingly, under her statement, recorded under Section 161 Cr.P.C., the complainant asserted that she was not aware of the particulars of other labourers, who were present at the time of incident. However, statement of the complainant's husband was recorded and on conclusion of the investigation, chargesheet was prepared as well as filed before the Ld. Trial Court. Pertinent for the purpose(s) of the present discourse to reproduce the relevant extracts from the statement of the complainant, recorded under Section 164 Cr.P.C. on 12.04.2016, as under;
"...लगभग 2 साल पहले रात में , मैं अपने पति और बच्चों के साथ एक निर्माणाधीन building में सोई हु ई थी। तभी मुझे लगा कि कोई मेरे पैर सहला रहा है। मैं चिल्लाई C.A. No. 440/2019 Ram Dutt Joshi v. State (GNCT of Delhi) Page 4 of 50 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.08.30 15:36:43 +0530 तो मेरे पति और लोगों ने वहां आकर, उस आदमी को पकड़ लिया और पुलिस के हवाले कर दिया।"
(Emphasis supplied) 2.2. Conspicuously, upon such chargesheet being filed, Ld. Trial Court took cognizance of offence, specified therein vide order dated 23.08.2017 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 03.12.2018, directed framing of charges under Sections 354A/457 IPC against the appellant herein inter alia under the following observations;
"...Arguments heard on the point of charge. Prima facie case for the offence punishable u/S. 457/354A IPC are made out against the accused . Charge framed accordingly to which the accused pleads not guilty and claimed trial..."
(Emphasis supplied) 2.3. Pertinent here to further reproduce the charges, consequently, framed against the appellant by the Ld. Trial Court on 03.12.2018, as under;
"...I, ***, M.M. Delhi do hereby charge you accused Ram Dutt Joshi, S/o. Sh. Madan Raj Joshi, aged about 33 years, R/o. H. No. T-51, Road No.20, Baljeet Nagar, Delhi as under;
That on 22.09.2013, at about 2.00am, at under construction Building No. 3/13, Old Rajender Nagar, Delhi within the jurisdiction of PS Rajender Nagar, you accused made physical contacts and advances towards the complainant/prosecutrix (name not written for the purpose of protecting the identity of the victim, however, verbally told to the toured) involving unwelcome and explicit sexual overtures and they committed an offence punishable U/s 354A IPC and within my cognizance.
C.A. No. 440/2019 Ram Dutt Joshi v. State (GNCT of Delhi) Page 5 of 50 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.08.30 15:36:46 +0530
Secondly on the above said date, time and place, you accused committed lurking house trespass in night in order to commit offence with imprisonment and thereby you have committed the offence punishable U/s 457 IPC and within my cognizance. And I hereby direct you to be tried for the aforesaid offences by this Court..."
(Emphasis supplied) 2.4. Markedly, the appellants pleaded not guilty to the aforesaid charges and claimed trial. However, during the course of proceedings held on 03.12.2018, the appellant admitted the recording of statement of the prosecutrix/complainant, conducted by the Ld. MM in terms of the provisions under Section 164 Cr.P.C. (as Ex. P1 (Colly.)); and the recording of FIR No. 189/2013, PS. Rajinder Nagar (as Ex. P2), in terms of the provisions under Section 294 Cr.P.C., without admitting the contents thereof. Consequently, the Ld. Trial Court, dispensed with/dropped the concerned Ld. MM-01, Central, Tis Hazari Court and the Duty Officer/DO HC Darshan Lal from the array of prosecution witnesses. Relevantly, during the course of trial, prosecution examined 04 (four) witnesses, i.e., PW-1/'R', husband of the prosecutrix; PW-2/Smt. 'L'/victim/prosecutrix; PW-3/Ct. Subhash; and PW-4/SI Bal Mukund Rai. Subsequently, on conclusion of prosecution evidence, recording of statement of the appellant under Section 281/313 Cr.P.C. on 30.08.2019, as well as on conclusion of arguments by/on behalf of the appellant and that on behalf of the State, as aforementioned, the Ld. Trial Court vide impugned judgment and order, convicted and sentenced the appellant, respectively, in the manner, as hereinunder noted.
3. Ld. Amicus Curiae2 for the appellant outrightly 2 Pertinently, during the course of proceedings before this Court, the appellant failed to appear, either in person or C.A. No. 440/2019 Ram Dutt Joshi v. State (GNCT of Delhi) Page 6 of 50 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.08.30 15:36:50 +0530 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 properly appreciate the evidence brought on record of the Ld. Trial Court. In this regard, Ld. Counsel vehemently asserted that PW-1/husband of the victim/complainant admittedly deposed on the basis of the information supplied/furnished to him by the complainant/victim and that he was not an eyewitness to the alleged incident, rather, merely a formal/hearsay witness. Correspondingly, as per the Ld. Counsel, the 'so called' watchman, who is asserted to have made through his Ld. Counsel. Needless to mention that despite repeated issuance of bailable and non-bailable warrants against the appellant as well as notices to his surety, the presence of the appellant could not be secured in the present case before this Court. Consequently, in light of the foregoing facts and circumstances, this Court appointed Ld. Amicus Curiae for the appellant on 02.01.2024, in view of the decision of the Hon'ble Supreme Court in Madan Lal Kapoor v. Rajiv Thapar & Ors., (2007) 7 SCC 623, wherein the Hon'ble Court, remarked, "5. Thus, in Bani Singha and Ors. v. State of U.P. MANU/SC/0615/1996: 1996CriLJ3491, a three Judge Bench of this Court held that a criminal appeal should not be dismissed in default but should be decided on merits. If despite notice neither the appellant nor his counsel present, the Court could decide the appeal on merits. If the appellant is in jail the Court can appoint a lawyer at State expense to assist it. This would equally apply to the respondent ***
8. In our opinion the same reasoning applies to criminal revisions also, and hence a criminal revision cannot also be dismissed in default..." Similarly, the Hon'ble Apex Court in Surya Baksh Singh v. State of U.P., (2014) 14 SCC 222, observed, "...17. The criminal justice delivery system is being held to ransom by convicts who have developed the devious and dishonest practice of escaping punishment or sentence by filing appeals, obtaining bail or suspension of sentence and thereafter disappearing beyond the reach of the arms of the law. The inherent powers under Section 482 CrPC, which the Supreme Court has on several occasions expounded to have existed from time immemorial, predating the present as well as the previous CrPC, must be pressed into action lest the already fragile policing and prosecuting branches of governance are rendered redundant *** After a comprehensive analysis of previous decisions our learned Brother had distilled the legal position into six propositions: (SCC p. 734, para 19)***"19.1. that the High Court cannot dismiss an appeal for non-prosecution simpliciter without examining the merits;***19.2. that the Court is not bound to adjourn the matter if both the appellant or his counsel/lawyer are absent;***19.3. that the court may, as a matter of prudence or indulgence, adjourn the matter but it is not bound to do so;***19.4. that it can dispose of the appeal after perusing the record and judgment of the trial court.***19.5. that if the accused is in jail and cannot, on his own, come to court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the appellant-accused if his lawyer is not present, and if the lawyer is absent and the court deems it appropriate to appoint a lawyer at the State expense to assist it, nothing in law would preclude the court from doing so; and***19.6. that if the case is decided on merits in the absence of the appellant, the higher court can remedy the situation ."..." (Emphasis supplied). Reference is further made to the decision in; Kabira v. State of U.P., 1981 Supp SCC 76 , wherein the Hon'ble Supreme Court inter alia observed, "...The appeal could not be dismissed by the learned Judge for default of appearance. If the appellant was not present, the learned Judge should have appointed some advocate as amicus curiae and then proceeded to dispose of the appeal on merits..." (Emphasis supplied). Needless to mention neither the appellant entered before this Court subsequent to 02.01.2024, nor was he represented by any privately engaged counsel. Ergo, arguments in the instant case were addressed by the Ld. Amicus Curiae on behalf of the appellant.C.A. No. 440/2019 Ram Dutt Joshi v. State (GNCT of Delhi) Page 7 of 50 Digitally signed by ABHISHEK
ABHISHEK GOYAL GOYAL Date:
2025.08.30 15:36:54 +0530 a call at 100 number/to the police officials, has not been joined as a witness in the instant case. As per the Ld. Amicus Curiae, the police officials, neither made the watchman, a witness in the present case nor made any enquiry(ies) from the said watchman regarding the alleged incident as well as about the caller who made a call at 100 number, to the prejudice of the appellant in the instant case. Even otherwise as per the Ld. Amicus Curiae, despite the assertion of PW-1 regarding the presence of a watchman at the alleged scene of crime and that of said watchman having made a call to the police officials, the prosecution did even bother to place on record and prove any DD Entry regarding the reporting of alleged incident to the police officials. In fact, even PW-4/SI Balmukund did not depose regarding the recording of any information of alleged incident/DD Entry or as to how the police officials came to know of the incident in question.
3.1. Ld. Amicus Curiae further submitted that the impugned judgment is based on conjectures and surmises, in as much as the Ld. Trial Court, failed to appreciate that though PW-1 asserted under his cross examination that two other persons were also sleeping on the same floor, adjacent to his room when the complainant had raised an alarm, despite which, the said persons were not joined in the investigation.
Correspondingly, it was submitted by the Ld. Amicus Curiae for the appellant that while passing the order of conviction of the appellant, the Ld. Trial Court failed to consider that though PW-1 asserted under his cross-examination that the munshi of the building had called the police officials to the spot, however, under his examination-in-chief, PW-1 proclaimed that the C.A. No. 440/2019 Ram Dutt Joshi v. State (GNCT of Delhi) Page 8 of 50 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.08.30 15:36:57 +0530 watchman reached at the spot and made a call at 100 number. As per the Ld. Counsel, despite such material contradiction, neither the said watchman nor munshi was joined in the investigation by the police officials, belying the version put forth by the complainant. Concomitantly, Ld. Amicus Curiae asserted that there are also material contradictions in the depositions of PW-1 and PW-2, which have been overlooked by the Ld. Counsel, while passing the order of appellant's conviction. In this regard, Ld. Counsel proclaimed that contrary to the version of PW-1 that either the watchman or the munshi called the police officials, as per PW-2, the watchman of the building reached at the spot and made a called the munshi. Further, PW-2 avowed that it was only during the morning hours, munshi of the building called the police to the spot. Even otherwise, as per the Ld. Counsel, the version of alleged occurrence, put forth by PW-2, does not establish the guilt of the appellant in the instant case. In this regard, Ld. Counsel further asserted that PW-2, during her deposition, did not make reference to the date, time and year of the alleged incident/occurrence, which is sufficient to demonstrate, falsity in the case of the prosecution. Ergo, Ld. Amicus Curiae fervently argued that 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 and other prosecution witnesses. Even otherwise, as per the Ld. Counsel, the complainant's testimony does not inspire confidence, and fails to unambiguously bring home the elements/ingredients of charges, which have been levelled against the appellant in the instant case.
3.2. Ld. Amicus Curiae for the appellant further C.A. No. 440/2019 Ram Dutt Joshi v. State (GNCT of Delhi) Page 9 of 50 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.08.30 15:37:01 +0530 submitted that the Ld. Trial Court did not consider that the allegations levelled by the complainant were extremely vague, general and insufficient to bring home culpability against the appellant herein, beyond reasonable doubt. Further, there are several lacunae in the investigation, belying the case of the prosecution. Correspondingly, as per the Ld. Counsel, PW-2 repeatedly asserted under her deposition that her statement was recorded in the police station, besides as per PW-2, the concerned police officials had conducted all the paper works in the police station. Ergo, as per the Ld. Counsel, since even as per the complainant/PW-2, no writing work was done by the police officials at the spot, the chances of false implication in the present case cannot be denied. It was further submitted by the Ld. Counsel for the appellant that PW-3/Ct. Subhash in his deposition proclaimed that when he reached at the spot, no public persons met him and only the victim and her husband met him. However, as per the Ld. Amicus Curiae, both, PW-1 and PW-2 deposed in their respective testimonies that they went to police station along with police officials on the night of the alleged incident, accentuating falsity in the version put forth by the prosecution. Correspondingly, it was submitted by the Ld. Counsel that the police officials made no enquiry as to the presence of any other laborers, residents, etc., in the vicinity of complainant's house. Even otherwise, no residence/persons from vicinity were admittedly joined in the investigation by the concerned police officials/IO in the present case. In this regard, Ld. Amicus Curiae vehemently asserted that the police did not join any public witnesses at the time of conducting the proceedings/investigation, except PW-1 and PW-2, who are, C.A. No. 440/2019 Ram Dutt Joshi v. State (GNCT of Delhi) Page 10 of 50 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.08.30 15:37:04 +0530 even otherwise, interested witnesses. 3.3. Ld. Amicus Curiae further submitted that even the appellant's plea of defence and other material placed on record were not accorded due weightage by the Ld. Trial Court, while erroneously reaching the finding of guilt of the appellant.
Accordingly, Ld. Amicus Curiae 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. Amicus Curiae that the order of sentence was also passed by the Ld. Trial Court, impulsively, while failing to appreciate that the appellant 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. Amicus Curiae, substantial time has lapsed since the incident in question and in case relaxation/leniency is not afforded to the appellant, serious/severe repercussions may ensue to his physical and mental well-being. Consequently, the Ld. Amicus Curiae for the appellant inter alia prayed that the present appeal be allowed, and the impugned judgment and order be set aside.
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.
C.A. No. 440/2019 Ram Dutt Joshi v. State (GNCT of Delhi) Page 11 of 50 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.08.30 15:37:13 +0530
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 anything in his defence before the Ld. Trial Court. 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 favour of the appellant.
5. The arguments of the Ld. Counsel/Ld. Amicus Curiae for the appellant and that of Ld. Addl. PP for the State have been heard and the record(s), including the Trial Court Record, 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 Court3 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, in an appeal against acquittal or an appeal against conviction, inter alia noted as 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 3 Reference further made to; Padam Singh v. State of U.P., (2000) 1 SCC 621.
C.A. No. 440/2019 Ram Dutt Joshi v. State (GNCT of Delhi) Page 12 of 50 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.08.30 15:37:16 +0530
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 re-appreciation of the entire material placed on record of the trial court and to arrive at an independent conclusion as to 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 4 that non-re-
4State of Gujarat v. Bhalchandra Laxmishankar Dave, (2021) 2 SCC 735.
C.A. No. 440/2019 Ram Dutt Joshi v. State (GNCT of Delhi) Page 13 of 50 Digitally signed by ABHISHEK GOYAL ABHISHEK Date: GOYAL 2025.08.30 15:37:20 +0530
appreciation of the evidence on record in an appeal may affect the case of either the prosecution or even an accused. Needless to re-emphasize 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;
"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. (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.
*** *** ***
441. Criminal trespass-Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such C.A. No. 440/2019 Ram Dutt Joshi v. State (GNCT of Delhi) Page 14 of 50 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.08.30 15:37:23 +0530 person, or with intent to commit an offence, is said to commit "criminal trespass".
442. House-trespass-Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit "house-trespass".
Explanation-The introduction of any part of the criminal trespasser's body is entering sufficient to constitute house-trespass.
443. Lurking house-trespass-Whoever commits house-trespass having taken precautions to conceal such house-trespass from some person who has a right to exclude or eject the trespasser from the building, tent or vessel which is the subject of the trespass, is said to commit "lurking house-trespass".
444. Lurking house-trespass by night-Whoever commits lurking house-trespass after sunset and before sunrise, is said to commit "lurking house- trespass by night".
445. House-breaking.-A person is said to commit "house-breaking" who commits house-trespass if he effects his entrance into the house or any part of it in any of the six ways hereinafter described; or if, being in the house or any part of it for the purpose of committing an offence, or, having committed an offence therein, he quits the house or any part of it in any of such six ways, that is to say:-
First.-If he enters or quits through a passage made by himself, or by any abettor of the house-trespass, in order to the committing of the house-trespass. Secondly.-If he enters or quits through any passage not intended by any person, other than himself or an abettor of the offence, for human entrance; or through any passage to which he has obtained access by scaling or climbing over any wall or building.
Thirdly.-If he enters or quits through any passage which he or any abettor of the house-trespass has opened, in order to the committing of the house- trespass by any means by which that passage was not intended by the occupier of the house to be opened. Fourthly.-If he enters or quits by opening any lock in order to the committing of the house-trespass, or in order to the quitting of the house after a house- trespass.
C.A. No. 440/2019 Ram Dutt Joshi v. State (GNCT of Delhi) Page 15 of 50 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.08.30 15:37:26 +0530
Fifthly.-If he effects his entrance or departure by using criminal force or committing an assault or by threatening any person with assault.
Sixthly.-If he enters or quits by any passage which he knows to have been fastened against such entrance or departure, and to have been unfastened by himself or by an abettor of the house-trespass. Explanation.-Any outhouse or building occupied with a house, and between which and such house there is an immediate internal communication, is part of the house within the meaning of this section.
*** *** ***
457. Lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment-Whoever commits lurking house-
trespass by night, or house-breaking by night, in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine; and, if the offence intended to be committed is theft, the term of the imprisonment may be extended to fourteen years..."
(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. Reference in this regard is made to the decision of the Hon'ble High Court of Kerala in V. Madhusoodhanan v. State of Kerala, Crl. MC No. 9074/2024, dated 22.11.2024:
2024:KER:87901, wherein the Hon'ble Court, while explicating the basic ingredients and contours of the provisions under Section 354A IPC, noted as under;
"...On reading the penal provision, the same deals with sexual harassment and punishment for sexual harassment. It has been specifically provided that if a man commits an act of physical contact and C.A. No. 440/2019 Ram Dutt Joshi v. State (GNCT of Delhi) Page 16 of 50 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.08.30 15:37:32 +0530 advances involving unwelcome and explicit sexual overtures, the same is an offence under Section 354A(1)(i) of IPC. When a man commits an act and makes a demand or request for sexual favour, the same is an offence under Section 354A(1)(ii) of IPC. Similarly, when a man commits an act showing pornography against the will of a woman, the same also is an offence under Section 354A(1)(iii) of IPC. Coming to Section 354A(1)(iv) of IPC, any man making sexually coloured remarks to a woman is guilty of the offence of sexual harassment. The decision reported in Vijayan v. State of Kerala's case (supra), cited by the learned counsel for the petitioner, in no way deals with an offence punishable under Section 354A of IPC and the same is pertaining to Section 354 of IPC and therefore the said decision has no application in the present case. It is true that, as pointed out by the learned counsel for the petitioner, based on the other decision the power under Section 482 of the Code of Criminal Procedure or under Section 528 of BNSS can be invoked to quash unwanted criminal proceedings initiated with mala fide intention to attain unlawful gain. Similarly, when the allegations are not made out, prima facie, this Court can quash the criminal proceedings.
However, law is well settled that when offences are, prima facie, made out, quashment sought for cannot be considered. In the instant case, going by the allegations, demand and request for sexual favours dealt under Section 354A(1)(ii) of IPC and making sexually coloured remarks dealt under Section 354A(1)(iv) are made out, prima facie, and in such a case quashment cannot be considered..."
(Emphasis supplied)
11. Here, this Court further deems it further 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;
"9. Thus when the modesty of a woman is outraged or it is likely to be outraged coupled with an 5 Amit @ Lalu v. State, Crl. Appeal No. 858/2016, dated 25.05.2017 (DHC).
C.A. No. 440/2019 Ram Dutt Joshi v. State (GNCT of Delhi) Page 17 of 50
Digitally
signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.08.30
15:37:36
+0530
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)
12. In as much as the applicability/culpability under Section 457 IPC is concerned, the accused must be proved/shown by the prosecution to have committed lurking house-trespass or house-breaking by night and that too, in order to the commit any of the offence punishable with imprisonment. In turn, the terms lurking house trespass/lurking house trespass at night and house breaking have been defined under Sections 443/444 and 445 of IPC, respectively. Remarkably, while the offence of lurking house trespass is specified under law to be affected when a person commits, "house-trespass having taken precautions to conceal such house-trespass from some person who has a right to exclude or eject the trespasser from the building, tent or vessel which is the subject of the trespass" , in contrast, offence under Section 445 IPC is committed when an accused commits house- trespass by effecting his entrance into the house or any part of it C.A. No. 440/2019 Ram Dutt Joshi v. State (GNCT of Delhi) Page 18 of 50 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.08.30 15:37:39 +0530 in any of the six ways, as specified under the said provision. In order to comprehensively appreciate the contours of the said provisions and the offences encapsulated therein, it is also pertinent to make a reference to the provision under Section 442 IPC, which defines house trespass as commission of criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property. Needless to mention, criminal trespass inter alia, is stated to occasion, under Section 441 IPC, with the entry of an accused into or upon property in the possession of another, "with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property".
13. Quite understandably, it is seen from the foregoing that the proof of either the offence under lurking house trespass or that of house breaking, at night, i.e., after sunset and before sunrise, is one of the essential ingredients to constitute/bring home culpability under Section 457 IPC. As aforenoted, house breaking may be committed in either of the manners as specified under the provisions under Section 445 IPC, whilst, to attract the provisions under Section 443/444 IPC/lurking house trespass/lurking house trespass at night, the offender must be shown to have taken some active means to conceal his presence and that mere trespass committed by night is not sufficient 6 to constitute an offence under the said provision. Reference in this regard may be made to the decision of the Hon'ble High Court of Delhi in Tilak Raj v. State (N.C.T.) of Delhi, 2010 SCC OnLine Del 448 wherein the Hon'ble Court, while explicating the 6 Lokesh Kumar v. State (NCT of Delhi), 2019 SCC OnLine Del 7007.
C.A. No. 440/2019 Ram Dutt Joshi v. State (GNCT of Delhi) Page 19 of 50 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.08.30 15:37:43 +0530
provisions under 443/444 IPC, observed as under;
"14. In order to constitute lurking house-trespass, the offender must take some active means to conceal his presence. If mere trespass committed by night does not constitute lurking house-trespass even if the darkness helps the accused to conceal his presence. Concealment of the accused on account of darkness does not convert the house-trespass into lurking house trespass. In "Buddha v. Emperor", (1916) 3 AIR Lahore 425, the Lahore High Court held that in order to constitute lurking house-trespass, the offender must take some active means to conceal his presence. The precaution to conceal house-trespass has to be taken before committing house-trespass. If a person, after committing house-trespass, tries to hide himself on seeing the occupant of the house, it cannot be said that he had, before committing house- trespass, taken any precaution to conceal his act from the owner or occupier of the house in which trespass is committed by him. In the present case, since there is absolutely no evidence or circumstance from which any such concealment on the part of the appellant or his co-accused may be inferred, lurking house-trespass punishable under Section 457 of IPC does not stand proved against him."
(Emphasis supplied)
14. Conspicuously, in order to comprehensively appreciate the question posed before this Court, it would be apposite to make reference to the provisions under Section 441 IPC and the ingredients thereof, as articulated by the Hon'ble High Court of Bombay in Dinesh Chandrikaprasad Phatak v. State of Maharashtra, 2015 SCC OnLine Bom 5813, as under;
"13. It is clear that to constitute 'criminal trespass' the entry in the property in possession of another must be;
(i) with intent to commit an offence; or
(ii) to intimidate, insult or annoy any person in possession of such property. It is trespass with the requisite intention, as mentioned in the said Section that would amount to 'criminal trespass'."
(Emphasis supplied)
15. Reference, in respect of the foregoing, is further C.A. No. 440/2019 Ram Dutt Joshi v. State (GNCT of Delhi) Page 20 of 50 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.08.30 15:37:47 +0530 made to the decision of the Hon'ble Supreme Court in Rajinder v. State of Haryana, (1995) 5 SCC 187, wherein the Hon'ble Court, while expounding the realms of the provisions under Section 441 IPC observed as under;
"21. It is evident from the above provision that unauthorised entry into or upon property in the possession of another or unlawfully remaining there after lawful entry can answer the definition of criminal trespass if, and only if, such entry or unlawful remaining is with the intent to commit an offence or to intimidate, insult or annoy the person in possession of the property. In other words, unless any of the intentions referred in Section 441 is proved no offence of criminal trespass can be said to have been committed. Needless to say, such an intention has to be gathered from the facts and circumstances of a given case. Judged in the light of the above principles it cannot be said that the complainant party committed the offence of "criminal trespass" for they had unauthorisedly entered into the disputed land, which was in possession of the accused party, only to persuade the latter to withdraw thereupon and not with any intention to commit any offence or to insult, intimidate or annoy them. Indeed there is not an iota of material on record to infer any such intention. That necessarily means that the accused party had no right of private defence to property entitling them to launch the murderous attack. On the contrary, such murderous attack not only gave the complainant party the right to strike back in self-defence but disentitled the accused to even claim the right of private defence of person."
(Emphasis supplied)
16. Consequently, mindful of the principles hereinunder noted, this Court would now appreciate the evidence and 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-2/'L', who inter alia asserted in her deposition that on the night of the incident, she was sleeping with her husband and children on the first floor of the site, where C.A. No. 440/2019 Ram Dutt Joshi v. State (GNCT of Delhi) Page 21 of 50 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.08.30 15:37:50 +0530 she/PW-2 and her husband worked as labourers. Corresponding, PW-2 pointed out towards the appellant before the Ld. Trial Court and proclaimed that the appellant touched her/PW-2's leg in an inappropriate manner (sehlaya), while she/PW-2 was sleeping. As per the complainant, she, consequently, woke up and saw that the appellant was touching her leg and she/PW-2 raised an alarm. Correspondingly, PW-2 deposed that her husband woke up and apprehended the appellant, Ram Dutt Joshi, whose name was revealed later on, who was trying to flee from the spot when she/PW-2 had raised an alarm. As per PW-2, she called the watchman of the building, who reached there and also called munshi. Thereafter, in the morning, as per PW-2, munshi called the police, who reached at the spot. PW-2 further avowed that subsequently, she/PW-2 along with her husband, accused and the police went to the police station. Further, as per PW-2, she tendered her statement ( Ex. PW2/A) and showed the spot to the police, whereupon site plan (Ex. PW2/B) was prepared by the IO at her/PW-2's instance. Concomitantly, it was asserted by PW-2 that her statement under Section 164 Cr.P.C. was got recorded before the Ld. MM on 12.04.2016. Further, PW-2 deposed that she was an illiterate and that the incident had happened when she was new to Delhi. Appositely, during the course of her deposition, PW-2 further proved her statement under Section 164 Cr.P.C. as Ex. PW2/C.
17. Markedly, upon being cross-examined, by/on behalf of the appellant, PW-2 asserted as under;
"XXXXXX by Ms. ***, Ld. Counsel for accused. I do not remember the exact date, month or year of the incident, however, it was raining on the day of incident. 4-5 persons were sleeping on the floor apart from my family. The light of the street was coming C.A. No. 440/2019 Ram Dutt Joshi v. State (GNCT of Delhi) Page 22 of 50 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.08.30 15:37:54 +0530 to the first floor. I do not know the name of the other persons who were sleeping on the same floor as they belong to different cities. Munshi of the builder might have called the police. However, I am not sure who had called the police. Police reached at the spot at around 8.00am. The incident had happened in the night. My statement was got recorded in the police station. I cannot say on which vehicle the police had reached at the spot. Police has done all the paperwork in the police station. I do not remember whether the police officials had recorded statement of any other person at the spot. I do not know whether the police recorded the statement of other persons who had accompanied us to the police station. When I was asleep I felt that someone was touching my legs and when I woke up, I saw the accused and raised alarm and accused tried to escape, my husband apprehended the accused standing in the Court today. It is wrong to suggest that the accused person standing in the Court today had not touched my legs. It is further wrong to suggest that due to the alarm raised by me the public persons had gathered and accused was one of the public persons and I had wrongly identified him in the present case. My statement was once recorded by the police and once by the Ld. Magistrate and today I am giving my statement before the Hon'ble Court. I do not remember how many persons were present in the police station when I gave my complaint. It is wrong to suggest that the accused has been falsely implicated by me in the present case in connivance of my husband..."
(Emphasis supplied)
18. Apposite at this stage to further refer to the deposition of PW-1/'R'/complainant's husband, who proclaimed in his testimony that in the intervening night of 21/22.09.2013, he/PW-1 along with his wife were sleeping on the first floor, after working as a labourers on the site. Further, as per PW-1, at around 02:00 a.m., as he was sleeping with his wife and child, he/PW-1 suddenly woke up by a loud noise of his/PW-1's wife. Correspondingly, as per PW-1, he saw that the appellant, who was correctly identified before the Ld. Trial Court, tried to flee from the spot. Further, it was asserted by PW-1, he tried to C.A. No. 440/2019 Ram Dutt Joshi v. State (GNCT of Delhi) Page 23 of 50 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.08.30 15:37:57 +0530 apprehend the appellant by holding his legs. Concomitantly, as per PW-1, when he/PW-1 enquired from his wife as to what had transpired with her, she informed him/PW-1 that the appellant was touching her leg in an inappropriate manner. PW-1 further avowed that in the meanwhile, the watchman also reached at the spot, who called at 100 number. Thereafter, police reached at the spot and took him/PW-1, his wife and the appellant to the police station. Relevantly, in his cross examination, PW-1 deposed, as under;
"XXXXXX by Ms. ***, Ld. Counsel for accused. I am illiterate but I can write my name. Two persons were also sleeping on the same floor adjacent to my room. When my wife raised alarm the other persons sleeping on the first floor also gathered. The light from the from sweet was coming on the first floor. I along with my wife was sleeping in the room and there was a veil/parda on the entrance of the room. It is further wrong to suggest that due to the alarm raised by me the public persons had gathered and accused was one of the public persons and I had wrongly identified him in the present case. Munshi of the builder called the police. Two police persons reached at the spot in the morning. Police recorded my statement in the police station and no proceedings were done by the police officials. My wife had shown the spot to the police and site plan was prepared by the IO at the instance of my wife. No article was taken or seized by the police in their custody from the temporary house in which were residing. It is correct that statement of watchman was not recorded by the police. It is wrong to suggest that accused person was not present on the spot. It is further wrong to suggest that I have falsely implicated the accused in the present case in connivance of my wife. No lady police came to the spot. I cannot say whether the police investigated the matter from the persons present near to the spot. The spot is in main market area. It is wrong to suggest that the present case is false."
(Emphasis supplied)
19. Notably, PW-3/Ct. Subhash proclaimed before the Ld. Trial Court that on the intervening night of 21/22.09.2013, he C.A. No. 440/2019 Ram Dutt Joshi v. State (GNCT of Delhi) Page 24 of 50 Digitally signed by ABHISHEK GOYAL ABHISHEK Date: GOYAL 2025.08.30 15:38:01 +0530 was posted as Constable at PS. Rajinder Nagar and on that day, he was on emergency duty at the police station. Further, as per PW-3, the Duty Officer informed IO/SI Bal Mukund that there was a requirement of police officials at quarter no. 3/13, Old Rajinder Nagar. Thereafter, as per PW-3, he along with the IO reached at the said spot, where the victim met them and on asking about the incident, the victim pointed out towards the appellant and stated that he was molesting her during night, when she was sleeping. Correspondingly, it was asserted by PW-3 that the IO recorded the statement of the victim (Ex. PW2/A) and on the directions of the IO, he/PW-3, apprehended the appellant, Ram Dutt Joshi, who was correctly identified by PW-3 before the Ld. Trial Court. Further, as per PW-3, the IO prepared tehrir of the present case and handed over the same to him/PW-3 for the registration of FIR. After registration of FIR, as per PW-3, he returned to the spot and handed over the original tehrir and computerized copy of the FIR to the IO. PW-3 further avowed that thereafter, the IO prepared the arrest memo of the appellant (Ex. PW3/A) and his personal search was conducted vide memo Ex. PW3/B. Further, it was asserted by PW-3 that the IO recorded the disclosure statement (Ex. PW3/C) of the appellant in his/PW-3's presence and thereafter, they went to the police station along with the accused, where the IO recorded his/PW-3's statement.
20. Significantly, under his cross examination, by/on behalf of the appellant, PW-3, asserted, as under;
"XXXXXX by Sh. ***, Counsel for the accused. I left the police station along with the IO at about 7:30 am. We reached within 15 minutes to the spot. When we reached at the spot, no public persons met us and only the victim and her husband met us at the C.A. No. 440/2019 Ram Dutt Joshi v. State (GNCT of Delhi) Page 25 of 50 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.08.30 15:38:05 +0530 spot. I do not remember whether IO has enquired from nearby residential houses regarding the ownership of H.No.3/13. Old Rajinder Nagar. The victim along with her husband was residing at the first floor of the above said property. The above said building was under the construction and it was four storeyed building. I do not remember whether other labourers besides the victim and her husband were residing at the above said property. It is correct that the spot i.e. H.No.3/13, Old Rajinder Nagar was surrounded by thickly populated area. IO asked 3-4 public persons to join the investigation but none of them agreed to join the proceedings. No legal action was taken by the IO against those persons who declined to join the investigation. I cannot tell whether IO had asked the residents of the locality to join the proceedings in my presence I remained at the spot till 10:00 am. I returned from the police station after about 20 minutes to the spot after registration of FIR.
It is wrong to suggest that I did not visit along with IO at the spot. It is further wrong to suggest that all the writing work was done by the IO while sitting in the police station and I have signed the documents at the police station on the instance of the IO. It is further wrong to suggest that accused was not arrested by me from the spot. It is further wrong to suggest that I am deposing falsely."
(Emphasis supplied)
21. Germane for the purpose of the present discourse to also refer to the deposition of PW-4/SI Bal Mukund Rai, who deposed that on the intervening night of 21/22.9.2013, he/PW-4 was posted as Sub Inspector at PS. Rajinder Nagar and was working as Emergency Officer at the police station. Further as per PW-4, at around 07:00 a.m., the Duty Officer telephonically informed him/PW-4 that there was a requirement of police officials at quarter no. 3/13. Old Rajinder Nagar. Thereafter, as per PW-4, he along with Ct. Subhash reached at the said spot, where the victim along with her husband, 'R' met them and on asking about the incident, the victim pointed out towards the appellant and stated that the appellant was molesting her during C.A. No. 440/2019 Ram Dutt Joshi v. State (GNCT of Delhi) Page 26 of 50 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.08.30 15:38:08 +0530 night, when she was sleeping. It was further asserted by PW-4 that the appellant was apprehended by labourers present there. Pertinently, the appellant was correctly identified as the said apprehended person/accused before the Ld. Trial Court. Further, as per PW-4, he told Ct. Subhash to take the appellant into his custody and on his/PW-4's directions, the appellant was taken into custody by Ct. Subhash. PW-4 further avowed that he/PW-4 recorded the statement of the victim (Ex. PW2/A) and thereafter, he/PW-4 prepared tehrir of the present case (Ex. PW4/A) and handed over the same to Ct. Subhash for registration of FIR. After registration of FIR, as per PW-4, Ct. Subhash returned to the spot and handed over the original tehrir and computerized copy of FIR to him/PW-4. Further, as per PW-4, the accused was thereafter, arrested vide memo (Ex. PW3/A) and appellant's personal search was conducted vide memo, Ex. PW3/B. Correspondingly, as per PW-4, he recorded the disclosure statement of the appellant (Ex. PW3/C) and prepared the site plan (Ex. PW2/B), at the instance of the victim. PW-4 further testified that the statement of the victim under Section 164 Cr.P.C. was got recorded on 12.04.2016. Thereafter, as per PW-4, they along with the accused returned to the police station and the statements Ct. Subhash and 'R', were recorded.
22. Apposite here to further refer, the cross examination of PW-4, as under;
"XXXXXX by Sh. ***, Ld. Counsel for accused. It is correct that I left the PS at about 7:00 AM to the spot. I reached at the spot within 15 minutes. It is correct that DO has not received 100 number call. It is correct that there is no DD is available in the present case. There is no entry gate to enter the building in which the complainant/victim was residing with her husband. It is correct that the C.A. No. 440/2019 Ram Dutt Joshi v. State (GNCT of Delhi) Page 27 of 50 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.08.30 15:38:13 +0530 building in which the complainant was residing was under construction that is why the public person used to visit easily at the first floor. I do not remember how many labour person were residing at the first floor beside the complainant and her husband. It is correct that I do not remember that who was residing at the ground floor.
No public person were met me at the spot. It is correct that the said building i.e. Building No. 3/13, old Rajinder Nagar, Delhi was situated thickly populated area. I have not called any resident from the residential area to join the proceedings. I remained at the spot till 11:00 AM. I have not recorded any statement from the public person during my stay period at the spot. Ct. Subhash went to PS for registration of case and he was returned after registration of case to the spot at about 10:15 AM. I have not verified from the contractor or the munshi/sub-contractor regarding the complainant as well as her husband were they are the employee or not at that relevant time. It is further correct that I have not verified on the nearby locality in which capacity the complainant was residing at the 1 st floor in the said building. It is also correct that I have not verified the register of the contractor in which they mark presence of their labour person who were doing the work at the said building.
It is correct that no watchmen was present at the said building besides the complainant and her husband. It is correct that I have not recorded any statement of other labour person who were present at the spot.
It is wrong to suggest that accused was falsely implicated in the present case. It is wrong to suggest that due to mechanical fault in the vehicle of accused and he was remained present with the vehicle on the road near this spot and later on accused was taken to PS and accused was falsely booked in the present case. It is wrong to suggest that no such incident had taken place. It is wrong to suggest that I have not properly investigated the matter and I am deposing falsely."
(Emphasis supplied)
23. Consequently, in light of the foregoing this Court would proceed with the determination of the rival contentions raised by the parties before this Court. In this regard, it would be C.A. No. 440/2019 Ram Dutt Joshi v. State (GNCT of Delhi) Page 28 of 50 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.08.30 15:38:16 +0530 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-2/Smt. 'L', 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)
24. 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 C.A. No. 440/2019 Ram Dutt Joshi v. State (GNCT of Delhi) Page 29 of 50 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.08.30 15:38:19 +0530 must be relied upon without seeking corroboration of her statement in material particulars..."
(Emphasis supplied)
25. 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 avowed7 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 declare8 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 Court 9 in State of Maharashtra v. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550, wherein the Hon'ble Court observed as under;
"17. We think it proper, having regard to the increase in the number of sex violation cases in the recent past, particularly cases of molestation and rape in custody, to remove the notion, if it persists, that the testimony of a woman who is a victim of sexual violence must ordinarily be corroborated in material particulars except in the rarest of rare cases. To insist on corroboration except in the rarest of rare cases is to equate a woman who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to 7 Kusti Mallaiah v. State of A.P., (2013) 12 SCC 680.8
State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 and Munna v. State of M.P., (2014) 10 SCC 254 9 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. 440/2019 Ram Dutt Joshi v. State (GNCT of Delhi) Page 30 of 50 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.08.30 15:38:23 +0530
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)
26. 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- 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 C.A. No. 440/2019 Ram Dutt Joshi v. State (GNCT of Delhi) Page 31 of 50 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.08.30 15:38:26 +0530 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 appellant, pertaining to the lack of corroboration in the testimony of the victim by public persons, in the instant case, necessitates appreciation by this Court in light of the foregoing observations.
27. Correspondingly, in order to accurately appreciate the contention of Ld. Counsel for the appellant 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 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 C.A. No. 440/2019 Ram Dutt Joshi v. State (GNCT of Delhi) Page 32 of 50 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.08.30 15:38:29 +0530 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)
28. 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)
29. Patently, from a conjoint reading of the above, it is 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 law10, 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 10 Appabhai v. State of Gujarat, 1988 Supp SCC 241 C.A. No. 440/2019 Ram Dutt Joshi v. State (GNCT of Delhi) Page 33 of 50 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.08.30 15:38:33 +0530 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 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)
30. 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 C.A. No. 440/2019 Ram Dutt Joshi v. State (GNCT of Delhi) Page 34 of 50 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.08.30 15:38:36 +0530 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-2/Smt. 'L'/victim is scrupulously analyzed, it is observed that the victim unambiguously deposed that on the night of the incident, she was sleeping with her husband and children on the first floor of the site, where she/PW-2 and her husband worked as labourers. Further, as aforenoted, as per PW-2, the appellant, who was correctly identified by her as the perpetrator offence, touched her/PW-2's leg in an inappropriate manner (sehlaya), while she/PW-2 was sleeping. Consequently, PW-2 asserted that she woke up and saw that the appellant was touching her leg and she/PW-2 raised an alarm. Upon this, PW-2 avowed that her husband woke up and apprehended the appellant, who was trying to flee from the spot. Thereafter, as per PW-2, the police reached there as one, munshi called the police. PW-2 further avowed that subsequently, she/PW-2 along with her husband, accused and the police went to the police station. Notably, as per PW-2, she tendered her statement (Ex. PW2/A) and also showed the spot to the police, whereupon site plan (Ex. PW2/B) was prepared by the IO at her/PW-2's instance. Concomitantly, it was asserted by PW-2 that her statement under Section 164 Cr.P.C. was got recorded before the Ld. MM on 12.04.2016. Further, PW-2 deposed that she was an illiterate and that the incident had happened when she was new to Delhi.
Undoubtedly, though, PW-2 did not proclaim of the exact date of C.A. No. 440/2019 Ram Dutt Joshi v. State (GNCT of Delhi) Page 35 of 50 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.08.30 15:38:40 +0530 the occurrence, however, when the testimony of PW-2 is scrupulously analyzed in light of the deposition of other witnesses, the date of occurrence becomes quite manifest. In fact, as aforenoted, PW-1 specifically proclaimed in his deposition that in the intervening night of 21/22.09.2013, at around 02:00 a.m., as he was sleeping with his wife and child, he/PW-1 suddenly woke up by a loud noise of his/PW-1's wife. Correspondingly, as per PW-1, he saw that the appellant, who was correctly identified before the Ld. Trial Court, tried to flee from the spot. Further, it was asserted by PW-1, he tried to apprehend the appellant by holding his legs. Concomitantly, as per PW-1, when he/PW-1 enquired from his wife as to what had transpired with her, she informed him/PW-1 that the appellant was touching her leg in an inappropriate manner. PW-1 further avowed that in the meanwhile, the watchman also reached at the spot, who called at 100 number. Thereafter, police reached at the spot and took him/PW-1, his wife and the appellant to the police station.
31. Pertinently, it is seen from above that the complainant/PW-2 has been consistent, thoroughly, in her initial complaint (Ex. PW2/A) as well as her statement recorded under Section 164 Cr.P.C. (Ex. PW2/C/Ex. P1(Colly.)), 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/victim, steadily deposed inter alia regarding the appellant's reaching at quarter no. 3/13, Old Rajinder Nagar, in the intervening night of 21/22.09.2013; of the appellant's touching her/PW-2's leg in an inappropriate manner (sehlaya), while she/PW-2 was sleeping; of her/PW-2's waking up and C.A. No. 440/2019 Ram Dutt Joshi v. State (GNCT of Delhi) Page 36 of 50 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.08.30 15:38:43 +0530 noting the appellant's presence there as well as of her/victim's raising an alarm; thereafter, regarding her/victim's husband waking up, on listening to her scream and apprehending the appellant on the spot; and of subsequently, the police officials reaching at the spot to whom the possession of the appellant was handed over. Correspondingly, in the considered opinion of this Court, nothing material is forthcoming under the cross examination of the complainant/PW-2 and PW-1 to belie their version, asserted before the Ld. trial Court. Clearly, under such circumstances, even in the considered opinion of this Court, the appellant has not been able to shake the creditworthiness of the deposition of the complainant in the instant case.
32. Needless at this stage to further reiterate/observe that the 'so called' discrepancies/inconsistencies in the testimony of the complainant/PW-2 and PW-1 regarding the identity of the person who made call to the police officials or that pertaining to exact timing of PW-1 as well as PW-2's reaching the police station, in the considered opinion of this Court, are not material or significant so as to belie the sterling nature of the complainant's deposition. Correspondingly, it pertinent to note here that, though, this Court is in agreement with the contention of the Ld. Amicus Curiae for the appellant that PW-1/'R', husband of the prosecutrix, is not a witness to the occurrence in question in so far as it relates to the appellant's touching of the prosecutrix's leg is concerned, however, the same is relevant as/demonstrating res gestae and the subsequent conduct of the prosecutrix, in terms of the provisions Section 6 and 8 of the Indian Evidence Act, 1872/Evidence Act. Pertinently, PW-1 consistently deposed about the factum of the prosecutrix's raising C.A. No. 440/2019 Ram Dutt Joshi v. State (GNCT of Delhi) Page 37 of 50 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.08.30 15:38:47 +0530 an alarm in the intervening night of 21/22.09.2013 of her/prosecutrix's informing him/PW-1 of the incident/occurrence with her. Needless to reiterate, PW-1 affirmed that the appellant was apprehended on the spot, while he was trying to flee away on hearing prosecutrix's shrieks/alarm. Here, it is significant to note/reiterate that both, PW-1 and PW-2 have been consistent in their deposition before the Ld. Trial Court and despite vigorous cross examination by/on behalf of the appellant, nothing has emerged under the deposition of either of the said prosecution witnesses, so as to belie the version put forth by them. Correspondingly, the appellant further failed to attribute any motive/intention on any of the prosecution witnesses to falsely implicate him in the instant case. On the contrary, from a conscientious perusal of the material placed on record, it is noted that the assertions made by the said witnesses in their respective cross-examination, further strengthens the case put forth by the prosecution against the appellant.
33. Relevantly, in respect of the foregoing, it is noted that PW-2 reaffirmed under her cross-examination that when she was asleep, she felt that someone was touching her legs and that when she woke up, "...I saw the accused and raised alarm and accused tried to escape, my husband apprehended the accused standing in the Court today...". Pertinently, both, PW-1 and PW-2 in their respective cross examination further avowed that at the time of the incident, "...light of the street was coming to the first floor...". Correspondingly, it is observed from the records that nowhere during the course of trial proceedings, the appellant denied its presence at the spot of occurrence. On the contrary, during the course of cross examination of PW-1 and PW-2, C.A. No. 440/2019 Ram Dutt Joshi v. State (GNCT of Delhi) Page 38 of 50 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.08.30 15:38:50 +0530 suggestion was put to both the said witnesses inter alia to the effect that due to an alarm raised by PW-2/complainant, public persons had gathered at the spot and that the appellant was one of such public persons. Needless in this regard to note that this Court is cognizant of the settled law 11 that suggestion given by the defence/defence counsel, during the cross examination of witness(es)/prosecution witness(es), amounts to admission by accused. Pertinent to further note that the appellant, even at the time of recording of his statement under Section 281/313 Cr.P.C., the appellant, did not deny his presence at the relevant point in time, rather, merely asserted, "...I am drive by profession and my car had some technical defect at the time of incident and I was waiting to help and suddenly I heard a noise from first floor on building near the main road and people gathered and started beating me...". Needless to mention that despite such assertion under his statement, recorded in terms of the provisions under Section 281/313 Cr.P.C., the appellant opted not to lead any evidence/witness in support of his cause.
34. In so far as the contentions of Ld. Amicus Curiae for the appellant pertaining to non-placing on record of the DD Entry in question or of that of the concerned IO, not enquiring from the munshi or the watchman in the instant case is concerned, it is observed that the superior courts have persistently avowed that in the case of a defective investigation, courts have to be 11 Reference is made to the decision in Balu Sudam Khalde v. State of Maharashtra, 2023 SCC OnLine SC 355 , wherein the Hon'ble Supreme Court, remarked, "38. Thus, from the above it is evident that the suggestion made by the defence counsel to a witness in the cross-examination if found to be incriminating in nature in any manner would definitely bind the accused and the accused cannot get away on the plea that his counsel had no implied authority to make suggestions in the nature of admissions against his client.*** 39. Any concession or admission of a fact by a defence counsel would definitely be binding on his client, except the concession on the point of law. As a legal proposition we cannot agree with the submission canvassed on behalf of the appellants that an answer by a witness to a suggestion made by the defence counsel in the cross-examination does not deserve any value or utility if it incriminates the accused in any manner." (Emphasis supplied) C.A. No. 440/2019 Ram Dutt Joshi v. State (GNCT of Delhi) Page 39 of 50 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.08.30 15:38:53 +0530 circumspect in evaluating the evidence, however12, "...it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective...". Reference in this regard is made to the decision of the Hon'ble Supreme Court in C. Muniappan & Ors. v. State of Tamil Nadu, 2010 (9) SCC 567, wherein the Hon'ble Court in an akin context, remarked, as under;
"55. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the I.O. and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence de hors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation..."
(Emphasis supplied)
35. Quite evidently, it is seen from above that a defective investigation does not automatically warrant an acquittal of an accused, considering that the courts are obligated to determine the truth of evidence and not to punish a flawed police work. As a corollary, even in a case of defective investigation, conviction of an accused can be upheld, if on 12 Dhanaj Singh v. State of Punjab, AIR 2004 SC 1920: 2004 (3) SCC 654.
C.A. No. 440/2019 Ram Dutt Joshi v. State (GNCT of Delhi) Page 40 of 50 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.08.30 15:38:57 +0530
evaluation of other credible and reliable evidence, such as consistent testimonies of victims, eyewitnesses, etc., guilt of an accused stands proved beyond reasonable doubt, in a given case. Ergo, in light of the foregoing, it is reiterated that when the testimonies of various witnesses are conscientiously perused, the role and complicity of the appellant in the instant case for the commission of offence under Section 354A IPC stands proved beyond a pale of doubt in the instant case. Correspondingly, this Court is not convinced with the submission of Ld. Amicus Curiae for the appellant that touching the feet of the woman at night would not bring home, culpability under Section 354A IPC in the present case. Reference in this regard is made to the decision of the Hon'ble High Court of Andhra Pradesh in Guduridheeraj Kumar v. State of Andhra Pradesh, Crl. Pet. No. 362/2022, dated 01.02.2022, while noting that placing of hand on a woman at the wake of night, prima facie amounts to offence under Section 354A IPC, observed as under;
"...The crime is being investigated and during the course of investigation, a detailed statement of the de facto complainant was recorded under Section 161 of Cr.P.C. She has stated in her statement that when all her family members along with her husband-A.1 and the petitioner herein, who is A.4, went to Araku and when she was sleeping during night time, the petitioner herein, who is A.4, came and placed his hand on her and at that time she woke up. Therefore, it is held that the petitioner herein is liable for prosecution for the offence punishable under Section 354A of I.P.C...
*** *** *** ...A reading of Section 354A of I.P.C. makes it clear that when a man commits an act of physical contact and advances involving unwelcome and explicit sexual overtures shall be guilty of the offence of sexual harassment. Therefore, in the light of the aforesaid ingredients contemplated under Section 354A of I.P.C., the aforesaid alleged act said to have been committed by the petitioner clearly constitutes a C.A. No. 440/2019 Ram Dutt Joshi v. State (GNCT of Delhi) Page 41 of 50 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.08.30 15:39:00 +0530 prima facie offence punishable under Section 354A of I.P.C. Therefore, the matter requires investigation to find out the truth or otherwise of the said allegation. At this stage there are no valid or legal grounds emanating from record warranting interference of this Court under Section 482 of Cr.P.C. either to quash the F.I.R. or to interdict the investigation. Therefore, the criminal petition lacks merit..."
(Emphasis supplied)
36. Correspondingly, reference is made to the decision of the Hon'ble High Court of Bombay in Parmeshwar v. State of Maharashtra, 2021 SCC OnLine Bom 6144, wherein the Hon'ble Court held that touching any part of the body of a woman without her consent that too in the dead hour of the night by a stranger, amounts to violation of modesty of a woman. Apposite to reproduce the relevant extracts from the said judgment, as under;
"10. When this test is applied to the facts of the instant case, it is clear that the act of the applicant was capable of shocking sense decency of any woman. In the case at hand, applicant was sitting at the feet of the victim and had touched her feet and was sitting on her cot. This behaviour smacks of sexual intent. Otherwise, there was no reason for the applicant to be in the house of the victim at such an odd hour of the night. When a query was put to the learned counsel Shri Bhosle as to why the applicant was present in the house of the informant/victim at dead hours of the night, he could not give any answer much less any satisfactory answer. Moreover, touching any part of the body of a woman without her consent that too in the dead hour of the night by a stranger amounts to violation of modesty of a woman. The applicant did not enter the house of the victim with any sublime motive. He had ensured in the evening from the victim that her husband would not be present in the house in the night. Therefore, the applicant ventured to enter the house. This clearly indicates that the applicant had gone there with sexual intent and violated the modesty of the informant. Therefore, learned Trial Court did not commit any error in holding that the applicant had molested the victim/informant."C.A. No. 440/2019 Ram Dutt Joshi v. State (GNCT of Delhi) Page 42 of 50 Digitally signed by ABHISHEK
ABHISHEK GOYAL Date: GOYAL 2025.08.30 15:39:04 +0530 (Emphasis supplied)
37. Pertinent to further note that this Court is further not convinced with the submission of Ld. Amicus Curiae for the appellant that since the spot of occurrence was accessible, offence of criminal trespass/house trespass could not be attributed to the appellant herein. In particular, reference in this regard is made to the cross-examination of PW-4, wherein he inter alia affirmed that there was no entry gate to enter the building, in which the complainant/victim was residing with her husband and that the said building was under construction, where public person used to visit easily. However, upon meticulous perusal of the provisions under Section 442 IPC, it is noted that the said provision can be attracted even in cases where criminal trespass is committed in any building or even a tent or a vessel, used as a human dwelling. Clearly, in the instant case, PW-1, specifically asserted under his cross-examination that he along with wife/the complainant, were sleeping in the room, where offence had occurred and that there was a veil/ parda on the entrance of the said room. Quite intelligibly, the room was intended to be used for human dwelling, though, even for a temporary period/limited duration, where the appellant is proved to have entered with an intention, as per the incontrovertible testimonies of PW-1 and PW-2, to commit the offence punishable with imprisonment. Ergo, under such circumstances, in the considered opinion of this Court, culpability of the appellant under Section 45113 IPC stands further proved beyond 13 "451. House-trespass in order to commit offence punishable with imprisonment--Whoever commits house- trespass in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine; and if the offence intended to be committed is theft, the term of the imprisonment may be extended to seven years." (Emphasis supplied) C.A. No. 440/2019 Ram Dutt Joshi v. State (GNCT of Delhi) Page 43 of 50 Digitally signed by ABHISHEK ABHISHEK GOYAL Date:
GOYAL 2025.08.30
15:39:07
+0530
reasonable doubt in the instant case. Needless to reiterate that in light of the decision in Tilak Raj v. State (N.C.T.) of Delhi, (Supra.) this Court is not convinced that the culpability under Section 457 IPC can be attracted against the appellant, considering that no evidence is forthcoming on record to demonstrate that the appellant made some active means and/or conscious endeavors to conceal his presence or to commit any of the acts, specified under Section 445 IPC. As aforenoted, in the said decision, the Hon'ble High Court unambiguously noted that mere trespass committed by night does not constitute lurking house-trespass even if the darkness helps the accused to conceal his presence. Correspondingly, as per the Hon'ble High Court if a person, after committing house-trespass, tries to hide himself on seeing the occupant of the house, it cannot be said that he had, before committing house-trespass, taken any precaution to conceal his act from the owner or occupier of the house in which trespass is committed by him. Nonetheless, in light of the foregoing facts and circumstances, evidence brought forth on record as well as judicial dictates, in the considered opinion of this Court, provisions under Section 451 IPC stands proved beyond reasonable doubt against the appellant, in the present case.
38. Consequently, in conspectus of the above and inter alia keeping in view consistent and 'sterling' testimonies of the complainant/victim/prosecutrix/PW2 and her husband, PW-2; the documents and other material placed on record, in the considered opinion of this Court, ingredients of offence under Section 354A IPC and Section 451 IPC stand duly proved against the appellant herein. In fact, from the aforesaid, it is proved 'beyond C.A. No. 440/2019 Ram Dutt Joshi v. State (GNCT of Delhi) Page 44 of 50 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.08.30 15:39:10 +0530 reasonable doubt' that the appellant, intentionally made physical contact and advances, involving unwelcome and explicit sexual overtures towards the complainant, by touching her feet in an inappropriate manner (sehlana) during the wake of the night, whilst, she was asleep, thereby, made himself liable for the offences punishable under Section 354A IPC. Correspondingly, as aforenoted, by entering into the encroachment/place used for residence, deployed by PW-1 and PW-2 at the said late hours of night, with an intention to commit the said offence, the appellant also made himself liable for the offence under Section 451 IPC in the instant case. Needless to reiterate that the testimonies of the prosecutrix/PW-2 and well as her husband/PW-1 have been unfailing on material particulars of the said offences, right from the inception of the present proceeding, till its culmination before the Ld. Trial Court. Correspondingly, the said depositions have not only natural and reliable, rather, devoid of any prevarication. Needless to further observe that the complainant/victim/PW-2 and PW-1 have further withstood lengthy and strenuous cross- examination conducted by/at the behest of the appellant.
39. 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 consistent strategies exist for determination of the manner and quantum of sentence which may be awarded to an accused in a given case. In fact, law provides for a considerable relaxation/discretion to the courts at the time of awarding sentence. However, the superior courts14 have persistently avowed that such discretion has to be 14 '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. 440/2019 Ram Dutt Joshi v. State (GNCT of Delhi) Page 45 of 50 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.08.30 15:39:14 +0530
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 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)
40. 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 C.A. No. 440/2019 Ram Dutt Joshi v. State (GNCT of Delhi) Page 46 of 50 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.08.30 15:39:19 +0530 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)
41. 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 word15 that mere long pendency of case is no ground to award lesser sentence. Needless to mention, courts 16 have also declared that an offence which affects the morale of the society should be 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 Court17 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;
15State of M.P. v. Ghanshyam Singh, (2003) 8 SCC 13.
16State of M.P. v. Bablu Natt, (2009) 2 SCC 272 17 Harendra Nath Chakraborty v. State of W.B., (2009) 2 SCC 758 C.A. No. 440/2019 Ram Dutt Joshi v. State (GNCT of Delhi) Page 47 of 50 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.08.30 15:39:23 +0530 "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)
42. Ergo, in light of the aforesaid observations and 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 a minimum sentence, prescribed under law for the offences under Section 354A 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 C.A. No. 440/2019 Ram Dutt Joshi v. State (GNCT of Delhi) Page 48 of 50 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.08.30 15:39:28 +0530 sentence so awarded by the Ld. Trial Court for the said offence is concerned. However, in so far as the offence under Section 451 IPC is concerned, considering the various mitigating and aggravating circumstances brought forth, including the conduct of the appellant before this Court, in the considered opinion of this Court, ends of justice would be met if the appellant is awarded rigorous imprisonment for a period of 01 (one) year. Needless to mention that the order of compensation, awarded to the victim by the Ld. Trial Court is hereby upheld.
43. Conclusively, in light of the foregoing discussion, while partially allowing the present appeal, the conviction of the appellant, namely, Ram Dutt Joshi by Ld. MM (Mahila Court)-01 in case bearing 'State v. Ram Dutt Joshi, Cr. Case No. 10699/2017', arising out of FIR No. 189/2013, PS. Rajinder Nagar, under Sections 354A/457 IPC for the offences under Sections 354A/457 IPC is upheld to the extent for the offence under Section 354A IPC. However, the appellant's conviction under Section 457 IPC is modified to his conviction under Section 451 IPC. Needless to mention that the appellant is directed to undergo, rigorous imprisonment for a period of 01 (one) year for the offence under Section 354A IPC; and rigorous imprisonment for a period of 01 (one) year for the offence under Section 451 IPC, sentences to run concurrently, besides the appellant would be entitled to the benefit of the provisions under Section 428 Cr.P.C. Correspondingly, the appellant is directed to pay a sum of Rs. 40,000/- (Rupees Forty Thousand only), as compensation to the victim/prosecutrix, within a period of two months from the said order, failing which, the appellant is directed to undergo, simple imprisonment for a period of one C.A. No. 440/2019 Ram Dutt Joshi v. State (GNCT of Delhi) Page 49 of 50 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.08.30 15:39:32 +0530 month.
44. Needless to reiterate that since the appellant is deliberately avoiding appearance before this Court despite repeated issuance of warrants, Trial Court Record along with a copy of this judgment/order is sent back/marked to the Ld. Trial Court, with directions to proceed against the appellant, as per law. Copy of this order/judgment be also given dasti to the Ld. Counsel/Ld. Amicus Curiae for the appellant. Further, a note in terms of the decision of the Hon'ble Supreme Court in Suhas Chakma v. Union of India (UOI) & Ors., MANU/SC/1147/2024 has been annexed with the copy of judgment, provided dasti to the Ld. Amicus Curiae.
45. Appeal file be consigned to record room after due Digitally compliance. signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.08.30 15:39:38 +0530 Announced in the open Court (Abhishek Goyal) on 30.08.2025. ASJ-03, Central District, Tis Hazari Courts, Delhi C.A. No. 440/2019 Ram Dutt Joshi v. State (GNCT of Delhi) Page 50 of 50