Delhi District Court
Kuldeep vs State on 30 January, 2024
IN THE COURT OF SH. ABHISHEK GOYAL,
ADDITIONAL SESSIONS JUDGE-03, CENTRAL
DISTRICT, TIS HAZARI COURTS, DELHI
CNR No. DLCT01-006660-2020
Criminal Appeal No. 158/2020
SH. KULDEEP,
S/o. Shri. Vikram Singh,
R/o. House No. F-1106,
Ram Park Extension,
Haqiqatnagar Khudawas,
P.S. Tronica City Lone,
Ghaziabad, Uttar Pradesh ... APPELLANT
Versus
STATE (GOVT. OF NCT OF DELHI) ... RESPONDENT
Date of Institution : 13.10.2020
Date when judgment was reserved : 08.01.2024
Date when judgment is pronounced : 30.01.2024
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.') against the judgment dated 01.11.2019 (hereinafter referred to as 'impugned judgment'), convicting the appellant for the offences punishable under Sections 354/354B/506 (part- II) of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC'), passed by the learned Metropolitan Magistrate/ Ld. MM- 01, Mahila Court, Central, Tis Hazari Courts, Delhi ('Trial Court/MM Court' for short) in case bearing "State v. Kuldeep, Clr. Case No. 5634/2017", arising out of FIR No. 56/2017, PS. I.P. Estate and the consequent order of sentence dated 16.09.2020 (hereinafter referred to as 'impugned order'), passed C.A. No. 158/2020 Kuldeep v. State (GNCT of Delhi) Page 1 of 38 by the learned Trial Court, awarding the appellant; simple imprisonment for a period of 01 (one) year along with fine of Rs. 2,000/- (Rupees Two Thousand only), in default to undergo simple imprisonment for a period of 10 (ten) days for the offence under Section 354 IPC; simple imprisonment for a period of 03 (three) years along with fine of Rs. 4,000/- (Rupees Four Thousand only), in default to undergo simple imprisonment for a period of 10 (ten) days for the offence under Section 354B IPC; and simple imprisonment for a period of 02 (two) years along with fine of Rs. 2,000/- (Rupees Two Thousand only), in default to undergo simple imprisonment for a period of 10 (ten) days for the offence under Section 506 (part-II) IPC, sentences to run concurrently (hereinafter impugned judgment and impugned order are collectively referred to as the 'impugned judgment and order').
2. Laconically, the case of the prosecution against the appellant is that on 24.02.2017 at around 09:00 p.m., at the footpath near Narain Trust, Tikri Bhawan, DDU Marg, Delhi (hereinafter also referred to as the 'spot/place of incident/incident spot'), the appellant, namely, Kuldeep, used criminal force against the complainant/victim/prosecutrix, Ms. 'R' (identity withheld1, hereinafter referred to as the 'victim/complainant/prosecutrix'), with the intention to outrage her modesty by putting his hand under her kurta and pressing her breasts and by scratching over her neck and putting her on the ground. Further the appellant is stated to have used criminal force against the complainant/victim/prosecutrix with the intention of 1 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. 158/2020 Kuldeep v. State (GNCT of Delhi) Page 2 of 38 disrobing her by trying to remove her clothes as well as threatened to kill her by saying, "agar shor machaya toh jaan se maar dunga", thereby committed offences punishable under Sections 354/354B/506 part II of IPC. Notably, consequent upon Ld. Trial Court's taking cognizance of the offence on 03.05.2017, charges under Sections 354/354B/506 part II of IPC were framed against the appellant on 21.09.2017 and the trial commenced. During the course of trial, prosecution examined seven witnesses. On conclusion of prosecution evidence as well as upon recording of appellant's statement under Section 313 Cr.P.C, arguments were addressed on behalf of the appellant as well as by/on behalf of State before the Ld. Trial Court. Consequently, as aforementioned, the Ld. Trial Court vide impugned judgment and order, while holding the appellant guilty of the offences, punishable under Sections 354/354B/506 part II of IPC, sentenced him in the manner, as noted hereinabove.
3. Learned Counsel for the appellant outrightly contended that the impugned judgment and order were passed by the Ld. Trial Court on mere conjunctures, surmises and in contravention of the settled principles of law, deserving their setting aside at the outset, as suffering with gross illegality. In this regard, Ld. Counsel further submitted that the impugned judgment and order were passed by the Ld. Trial Court on mere assumptions and that no sound and cogent reasons have been assigned under the impugned judgment and order, besides the fact that the Ld. Trial Court failed to appreciate the contents of the complaint, examination-in-chief as well as the cross examination of the complainant in its correct perspective. In this regard, Ld. Counsel further submitted that while passing the C.A. No. 158/2020 Kuldeep v. State (GNCT of Delhi) Page 3 of 38 impugned judgment and order, the Ld. Trial Court failed to appreciate that there are contradictions in the various statements/testimonies of the complainant as well as the fact that the testimony of the complainant does not find corroboration from the testimony/statement of any public witnesses. Even otherwise, as per the Ld. Counsel, it is the prosecution's own case there was heavy traffic, and several public persons were present at the spot of incident. However, despite the same, none of the said public witnesses were examined by the concerned IO, making the testimony/statement of the complainant liable to be outrightly rejected in absence of corroboration from the statements of public witnesses. In this regard, Ld. Counsel further submitted that no public witnesses have been examined in support of the case of the prosecution and inconsistencies have cropped in the examination of the prosecution, which were not considered by the Ld. Trial Court while passing the impugned judgment and order. Ld. Counsel additionally submitted that the Ld. Trial Court failed to consider the fact that all other prosecution witnesses were official witnesses, who deposed in support of the prosecution and consequently, the Ld. Trial Court failed to appreciate the fact that upon joint reading of the examination in chief and cross examination of prosecution witnesses, give sole and exclusive conclusion that the complainant's story is unbelievable, unreliable, and untrustworthy, making the impugned judgment and order to be outrightly set asides. In this regard, Ld. Counsel further vehemently contended that while passing the impugned judgment and order, the Ld. Trial Court failed to consider that the appellant denied all the allegations against him and had even stated that he C.A. No. 158/2020 Kuldeep v. State (GNCT of Delhi) Page 4 of 38 has been falsely implicated in the present case. However, it was contended, the Ld. Trial Court exercised its judicial discretion in an extremely unjust, arbitrary and capricious manner, while failing to appreciate that there is no cogent, credible and reliable evidence on record for reaching an unambiguous conclusion towards the guilt of the appellant herein.
4. Learned Counsel further submitted that the impugned judgment and order is violative of the principles of natural justice and the Ld. Trial Court even failed to disclose the reasons for negating the judgments cited by the appellant, besides failing to appreciate that the prosecution/complainant has failed to prove its/her case on its own legs. Ld. Counsel further fervently averred that the Ld. Trial Court failed to consider that the appellant was falsely implicated in the present case due to ulterior motive and bald averment of the complainant. In this regard, Ld. Counsel further submitted that the Ld. Trial Court, while passing the impugned judgment and order, failed to consider that the appellant has been falsely roped in the present proceeding(s) due to appellant's friendly relationship with the family of Dhanbhai as well as the fact that the present proceedings were initiated at the behest/by the complainant to grab money from the appellant. As per the Ld. Counsel for the appellant, the complainant is a habitual drunkard, persistently demanding money from persons regarding the same, and it was only when the appellant refused to succumb to such monetary demand of the complainant, that the appellant was roped into the present false and frivolous case. Accordingly, Ld. Counsel for the appellant submitted that not only did the Ld. Trial Court failed to consider the truth of circumstances and passed its C.A. No. 158/2020 Kuldeep v. State (GNCT of Delhi) Page 5 of 38 judgment/decision in haste, rather, did not properly appreciate/examine the facts of the present case, wrongly holding the appellant guilty of the aforementioned offences. Consequently, the Ld. Counsel inter alia prayed that the present appeal be allowed, and the impugned judgment and order be set aside.
5. Per contra, Ld. Addl. PP for the State submitted that the impugned judgment and order was passed by the Ld. Trial Court after due appreciation of the facts and circumstances of the case as well as in consonance with the settled judicial precedents. Ld. Addl. PP for the State further submitted that the testimony of the prosecutrix has not only been consistent, rather, of sterling quality, lucidly pointing out towards the only inference of guilt of the appellant. It was further submitted by the Ld. Addl. PP for the State that the appellant has even failed to prove its defence before the Ld. Trial Court by adducing any witnesses, independent/uninterested witnesses or otherwise. Concomitantly, it was submitted by the Ld. Addl. PP for the State, even otherwise, the contention of/on behalf of the appellant regarding the complainant's conduct and character are afterthought and have been raised by the appellant solely to prejudice the prosecution case, without there being any iota of truth behind the same. Lastly, it was submitted by the Ld. Addl. PP for the State that no ground of any indulgence or relaxation in either the impugned judgment or even in the order of sentence/impugned order, passed against the appellant are established, convincing this Court to grant any relaxation in favour of the appellant, besides considering the gravity of offence involved, the appellant is not even entitled to the benefit of the provisions under the C.A. No. 158/2020 Kuldeep v. State (GNCT of Delhi) Page 6 of 38 Probation of Offenders Act, 1958 (hereinafter referred to as the 'Probation of Offenders Act'). Accordingly, Ld. Addl. PP for the State submitted that the present appeal deserves to be dismissed at the outset, as grossly malicious and devoid of merits.
6. The arguments of the Ld. Counsel for the appellant as well as that of Ld. Addl. PP for the State have been heard and the record(s), including the Trial Court Record, thoroughly perused.
7. At the outset, this Court deems it incumbent to deal with the contention of the Ld. Counsel for the appellant inter alia to the effect that the testimony of the prosecutrix/compliant/victim cannot (and could not have) form(ed) the sole basis of conviction of the appellant. In fact, as aforenoted, it is a vehement contention of the Ld. Counsel for the appellant that considering that the incident had occurred at a public place, accessible to general public, conviction of the appellant could not have been premised solely on the testimony of the complainant, Ms. 'R', in the absence of corroboration from the testimony of the witnesses who would have witnessed the said incident, at the relevant point in time. In this regard, it is imperative 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 the contention of the akin effect, inter alia 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 C.A. No. 158/2020 Kuldeep v. State (GNCT of Delhi) Page 7 of 38 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)
8. Analogously, the Hon'ble High Court of Delhi in State (NCT of Delhi) v. Pratap Singh, 2016 SCC OnLine Del 3207, in the similar context observed as under;
"17. It is now well-settled that conviction for an offence of rape/sexual assault can be based on the sole testimony of prosecutrix. if the same is found to be natural, trustworthy and worth being relied on. If the evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars..."
(Emphasis supplied)
9. Demonstrably, it is observed from above that it is a settled law that conviction for an offence of sexual assault/rape can be based on the sole testimony of the prosecutrix. In fact, even on a general principle, it has been recurrently avowed2 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 his version 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 declare 3 that to seek corroboration to the testimony of the prosecutrix 2 Kusti Mallaiah v. State of A.P., (2013) 12 SCC 680. 3 State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 and Munna v. State of M.P., (2014) 10 SCC 254 C.A. No. 158/2020 Kuldeep v. State (GNCT of Delhi) Page 8 of 38 before relying upon the same would amount to adding insult to the injury sustained by such victim and have, consequently, deprecated the said practice. Unmistakably, the reasons for the same can be easily inferred from the decision of the Hon'ble Supreme Court4 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 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 4 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. 158/2020 Kuldeep v. State (GNCT of Delhi) Page 9 of 38
ordinarily a woman, more so a young girl, will not stake her reputation by levelling a false charge concerning her chastity."
(Emphasis supplied)
10. 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, 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 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/complainant in the instant case, necessitates appreciation by this Court in light of the foregoing observations.
11. Relevantly, the complainant/prosecutrix/victim, PW1 Ms. 'R' in her testimony before the Ld. Trial Court deposed that on 25.02.2017 at around 09:00 p.m., when she was going to Hanuman Temple, Connaught Place, on her way through DDU C.A. No. 158/2020 Kuldeep v. State (GNCT of Delhi) Page 10 of 38 Marg Road (footpath), the appellant came and caught hold of her from behind and he put his hand on her mouth as well as threatened her by saying, "agar shor machaya toh jan se maar dunga". Subsequently, as per PW-1/complainant, the appellant put his hand insider the complainant's wearing shirt and started pressing both her breasts and thereafter, the appellant pulled her wearing slacks downward and tried to outrage complainant's modesty as the appellant, Kuldeep, was pulling her wearing slacks and tried to make her naked. The complainant further deposed regarding her raising an alarm, as the hands of the appellant was/got removed from her mouth. Consequently, the appellant ran away from the spot, whereupon the complainant called the police. As the police reached the spot, the complainant gave her complaint vide Ex. PW1/A. IO also prepared a site plan on the complainant's insistence vide Ex. PW1/B. IO also investigated the matter from the people residing in the nearby slums (jhuggi). Further, as per the complainant, some dweller told the IO, appellant's address. Thereafter, the IO went to the appellant's house and arrested him vide arrest memo bearing Ex. PW1/C as well as the complainant's statement under Section 164 Cr.P.C., was recorded before the concerned MM on 25.02.2017, Ex. P-1. Significantly, similar averment regarding the appellant grabbing hold of the complainant from behind at the spot on 24.02.2017 at around 09:00 p.m.; pressing her mouth, threatening the complainant by uttering, "agar shor machaya toh jan se maar dunga"; putting his/appellant's hand inside the complainant's kurta as well as pressing both her breasts; subsequently, pulling her slacks down; and thereafter, fleeing from the spot after the complainant's raising an alarm, finds C.A. No. 158/2020 Kuldeep v. State (GNCT of Delhi) Page 11 of 38 mention in her complaint, Ex. PW1/A. Concomitantly, the complainant in her statement recorded under Section 164 Cr.P.C. corroborated regarding the appellant grabbing hold of her from behind at the spot on 24.02.2017 at around 09:00 p.m., putting his/appellant's hand inside the complainant's kurta as well as pressing both her breasts; subsequently, pulling her slacks down; the appellant uttering, "aaj tujhe nahi chorunga, agar police mein complaint kiya, toh meri zamanat ho jaayegi, aur tum zinda nahi bachogi"; and subsequently, fleeing from spot after seeing arrival of some persons.
12. Appositely, in light of the aforesaid statements of the complainant/victim, the appellant has challenged the impugned judgment and order on the ground of contradictions (allegedly) in the testimony of the victim/complainant in her complaint as well as deposition before the Ld. Trial Court vis-à-vis her statement under Section 164 Cr.P.C., which fact, as per the Ld. Counsel for the appellant has not been considered by the Ld. Trial Court. In this regard, it has been vehemently contented by the Ld. Counsel for the appellant that there are material contradictions in the statements made by the victim complainant in her complaint as well as her testimony before the Ld. Trial Court on one hand, and that in her testimony/statement under Section 164 Cr.P.C, on the other. In fact, as per the Ld. Counsel for the appellant, the prosecutrix/complainant, in her complaint before the police officials as well as her deposition before the Ld. Trial Court had specifically averred that at the relevant point in time, the appellant threatened her by uttering, "agar shor machaya toh jan se maar dunga", whereas, in her statement under Section 164 Cr.P.C., the complainant deposed that the appellant threatened C.A. No. 158/2020 Kuldeep v. State (GNCT of Delhi) Page 12 of 38 her by pronouncing, "aaj tujhe nahi chorunga, agar police mein complaint kiya, toh meri zamanat ho jaayegi, aur tum zinda nahi bachogi". At the same time, Ld. Counsel contended that while the complainant in her statement under Section 164 Cr.P.C. declared that the appellant, Kuldeep used to frequently visit the jhuggis, near her house and was accordingly, known to her, however, in her cross examination before the Ld. Trial Court, the complainant deposed that she did not know the appellant, Kuldeep, however, had seen him playing cards and drinking near road side in an open are with his fellow person living in the jhuggi. Further, as per the Ld. Counsel there are also contradictions pertaining to the arrest of the appellant. In this regard, Ld. Counsel submitted that while the complainant/victim in her supplementary statement dated 25.02.2017, recorded under Section 161 Cr.P.C., observed that the appellant was arrested on the said date at around 10:40 a.m., at Mahawat Khan Road, upon her identification, however, in her cross-examination before the Ld. Trial Court on 13.02.2018 and 07.08.2018, the complainant/victim asserted that the appellant was arrested by the IO in the next day of Shivratri and she was called in the police station by the IO to identify the appellant and that the appellant was not arrested in the presence of the complainant. Accordingly, Ld. Counsel contended that had the said factors/contradictions been duly considered and appreciated by the Ld. Trial Court, appellant's conviction would not have ensued.
13. Ominously, in order to accurately appreciate the aforesaid contentions, it would be pertinent to iterate and explore the judicial precedents governing the law of contradictions in the C.A. No. 158/2020 Kuldeep v. State (GNCT of Delhi) Page 13 of 38 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 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)
14. Correspondingly, the Hon'ble Apex Court in Rammi v. State of M.P., (1999) 8 SCC 649, while dealing with similar issue, inter alia, noted 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 C.A. No. 158/2020 Kuldeep v. State (GNCT of Delhi) Page 14 of 38 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)
15. Patently, from a conspectus of the above, it may be unmistakably 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 law5, the discrepancies which do not shake the basic version of the prosecution and those which emanate due to normal errors of perception or observation should not be given importance and must necessarily be discarded. The rationale behind the same is quite obvious, as elucidated by the Hon'ble Supreme Court in State of U.P. v. Naresh, (2011) 4 SCC 324, inter alia recording as under;
"30. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and 5 Appabhai v. State of Gujarat, 1988 Supp SCC 241 C.A. No. 158/2020 Kuldeep v. State (GNCT of Delhi) Page 15 of 38 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)
16. Consequently, to recapitulate, in order to disregard the testimony of a witness, it is imperative that the same is replete with material improvements, contradictions and variation. In contrast, law provides for due concession for marginal variations and normal discrepancies in the statement/testimony of a witness, which are bound to occur due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Consequently, when the testimony of the victim/prosecutrix in the instant case is analyzed, mindful of aforenoted revered principles, this Court finds itself difficult to be convinced with the contention of the Ld. Counsel for the appellant that the complainant's/victim's testimony is unreliable and worthy of rejection. In fact, in this regard, this Court further unambiguously reiterates that the prosecutrix/victim/complainant in her deposition before the Ld. Trial Court echoed the entire incident, as stated by her in her complaint, inter alia to the effect C.A. No. 158/2020 Kuldeep v. State (GNCT of Delhi) Page 16 of 38 that on 25.02.2017 at around 09:00 p.m., when she was going to Hanuman Temple, Connaught Place, on her way through DDU Marg Road (footpath), the appellant came and caught hold of her from behind and he put his hand on her month as well as threatened her by saying, "agar shor machaya toh jan se maar dunga". Subsequently, the appellant put his hand inside the complainant's wearing shirt and started pressing both her breasts and thereafter, the appellant pulled her wearing slacks downward and tried to outrage complainant's modesty as the appellant, Kuldeep, was pulling her wearing slacks and tried to make her naked. The complainant further deposed regarding her raising an alarm as the hands of the appellant was removed from her mouth. Consequently, the appellant ran away from the spot, whereupon the complainant called the police. In her said deposition, the complainant/victim further affirmed the factum of police reaching the spot of incident and the complainant/victim getting the site plan prepared on the said date of Shivratri as well as of the apprehension of the appellant, on the day following the day of Shivratri.
17. Unquestionably, there do appear to be some omissions/inconsistencies in the statement of the complainant in her complaint as well as her deposition before the Ld. Trial Court on one hand and her statement under Section 164 Cr.P.C, on the other in so far as they relate to arrest and identification of the appellant by the police upon the information received from secret informer/dwellers of jhuggi in distinction to his apprehension at the behest/upon identification of the complainant, respectively. Further, there also appears to be some omission as to the appellant's acquaintance with the complainant as well as the C.A. No. 158/2020 Kuldeep v. State (GNCT of Delhi) Page 17 of 38 exact words uttered by the appellant at the relevant point in time, however, the said variations cannot, by any stretch of imagination, be termed as material, glaring or striking, so as to discredit the otherwise cogent and consistent stand of the victim/complainant in so far as it relates to the presence of the appellant at the spot on 24.02.2017 at around 09:00 p.m., i.e., the date of incident; the appellant grabbing the complainant from behind, appellant's putting his hand on the complainant's mouth as well as threatening to kill her; the appellant thereafter, putting his hand inside the complainant's wearing shirt and starting to press both her breasts and thereafter, appellant's pulling her wearing slacks downward with an attempt to make her naked and thereby, outraging her/complainant's modesty; the police reaching the spot of incident; and the complainant/victim getting her complaint/statement recorded before the concerned police officials on the day, following the incident (next day to Shivratri). In fact, the said material particulars have even withstood the test of cross examination, conducted by/at the behest of the appellant before the Ld. Trial Court on 13.02.2018 and 07.08.2018. Apposite to note here that the complainant's deposition in her cross examination dated 13.02.2018 regarding the appellant not being known to the complainant cannot be read in the manner as suggested by the Ld. Counsel for the appellant, to the effect that the complainant was not even aware of the identity/name of the appellant at the relevant point in time. Needless to mention, the complainant persistently deposed about the appellant being a frequent visitor in the jhuggis near her house and being often seen playing cards and drinking near the roadside in open area with his fellow persons living in the C.A. No. 158/2020 Kuldeep v. State (GNCT of Delhi) Page 18 of 38 jhuggis. Therefore, the complainant's statement that the appellant was not known to her cannot be read in a manner as to state that she was not even aware of the identity of the appellant, especially when no such question appears to have been put to the complainant in her cross examination. Evidently, knowledge of a person is distinguishable from awareness of identity of a person, even on a general parlance. Concomitantly, it is reiterated that neither any question not any suggestion pertaining the same was even put to the complainant in her detailed and elaborate cross examination held on 13.02.2018 and 07.08.2018 before the Ld. Trial Court. Needless to mention, the same is despite the fact that the appellant was duly identified by the complainant/victim before the Ld. Trial Court.
18. Without prejudice to the foregoing, in so far as emphasis of the Ld. Counsel for the appellant pertaining to the victim's/complaint's inability to recount the exact particulars of the remarks made by the appellant on the date of incident (in order to belie her testimony) is concerned, this Court unswerving observes that firstly, there is no omission in the testimony of the complainant in so far as she persistently deposed that the appellant threatened to kill her on the date of incident. Even otherwise, presuming some discrepancy/omission, the same is not material so as to erode the otherwise consistent case of the prosecution. The same is especially so for the reason that the courts have persistently avowed that a witness cannot be expected to possess a photographic memory and/or to recall even the minutest details of an incident. In fact, in this regard, the Hon'ble Supreme Court in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (1983) 3 SCC 217, while appreciating the C.A. No. 158/2020 Kuldeep v. State (GNCT of Delhi) Page 19 of 38 patent reasons leading to minor discrepancy(ies) in the statement of witness(es) affirmed as under;
"5. ... We do not consider it appropriate or permissible to enter upon a reappraisal or reappreciation of the evidence in the context of the minor discrepancies painstakingly highlighted by learned Counsel for the appellant. Overmuch importance cannot be attached to minor discrepancies. The reasons are obvious:
"(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprised. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(3) The powers of observation differ from person to person. What one may notice, another may not.
An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape-recorder.
(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess-work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details C.A. No. 158/2020 Kuldeep v. State (GNCT of Delhi) Page 20 of 38 from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him-Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment."
(Emphasis supplied)
19. Persuasively, in light of the aforesaid and further being cognizant of the fact that the incident in question pertains inter alia to outraging the modesty of woman at night, where the victim was subjected to criminal force, assault and hurt, it is quite logical that the victim/complainant may not remember the each and every particular of events and that too in chronology. Undeniably, the complainant cannot be expected to remember each and every minutest detail of the incident which had transpired on the fateful night. Correspondingly, the victim's omission to specify the exact/verbatim utterance of the appellant on the date of incident in her statement under Section 164 Cr.P.C. does not, in the opinion of this Court, even appears to be sufficient to discredit her testimony. The same is for the reason, as aforenoted, the victim/prosecutrix has been consistent in her various statements/depositions inter alia regarding the presence of the appellant at the spot on 24.02.2017 at around 09:00 p.m., i.e., the date of incident; the appellant grabbing the complainant from behind, appellant's putting his hand on the complainant's mouth as well as threatening to kill her; the appellant thereafter, putting his hand inside the complainant's wearing shirt and starting to press both her breasts and thereafter, appellant's pulling her wearing slacks downward with an attempt to make her naked and thereby, outraging her/complainant's modesty; the C.A. No. 158/2020 Kuldeep v. State (GNCT of Delhi) Page 21 of 38 police reaching the spot of incident; and the complainant/victim getting her complaint/statement recorded before the concerned police officials on the day, following the incident (next day to Shivratri). Needless to further mention at this stage that, though, there appears to be some difference in the complainant's testimony regarding the date of incident, which is recorded as 25.02.2017 in her deposition before the Ld. Trial Court, however, considering her earlier statement before the police as well as under her statement under Section 164 Cr.P.C. and even under the latter part of her deposition before the Ld. Trial Court on 31.10.2017, wherein the complainant affirmed the date of incident as that of Shivratri, this Court can reasonably take judicial notice of the date of incident as 24.02.20176, which, in the opinion of this Court is not a material omission. Needless to mention that the said fact was never put to the complainant in her cross-examination before the Ld. Trial Court and intelligently appears to be more in a nature of typographical error in the recording of her statement.
20. Manifestly, in light of the foregoing, the only conclusion which this Court can unambiguously reach in the instant case is that not only is the statement of the victim/complainant consistent in material particulars, rather, the same unequivocally points towards the guilt of the appellant. Needless to reiterate that the testimony of the prosecutrix has been unfailing on material particulars of the offences with which 6 Section 57(9) of the Indian Evidence Act, 1872 which provides, "S. 57. The Court shall take judicial notice of the following facts:..(9) The divisions of time, the geographical divisions of the world, and public festivals, fasts and holidays notified in the Official Gazette". Further, in light of the circular bearing; F.No.12/8/2016-JCA-2, dated 24.06.2016, issued by; the Government of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training), JCA-2 Section (Re: Holidays to be observed in Central Government Offices during the year 2017- reg.) C.A. No. 158/2020 Kuldeep v. State (GNCT of Delhi) Page 22 of 38 the appellant has been convicted with, right from the inception of the present proceeding, till its culmination. Pertinent to further note that not only is the complainant's/victim's testimony, natural and reliable, rather, devoid of any prevarication or fabrication. Additionally, as aforenoted, the complainant/victim has withstood lengthy and strenuous cross-examination conducted by/at the behest of the appellant before the Ld. Trial Court on 13.02.2018 and 07.08.2018, bereft of any material discrepancy(ies), omission(s) or inconsistency(ies) as to the factum of the occurrence, the person(s) involved, as well as the sequence of it. Unmistakably7, under such circumstances, the testimony of the prosecutrix/complaint can intelligibly be termed as 'sterling' in its quality. Nonetheless, the version presented by the prosecutrix/victim also finds credence to some extent also from the testimony(ies) of PW7 ASI Pramod Kumar, who deposed before the Ld. Trial Court regarding the complainant informing him about the incident in question upon him reaching the spot and subsequently, identifying the appellant as the perpetrator thereof. Apposite to note here that, though, this Court is conscious of the fact that the said witness is not primary/direct evidence to the incident in question (is a hearsay witness), however, considering the proximity in time, his statement is relevant under Sections 6 and 8 of the Indian Evidence Act, 1872, as res gestae and conduct of the complainant/victim (any person an offence against whom is the subject of any proceeding), influenced by any fact in issue or relevant fact, respectively. Further, PW-2 Dr. Jony Kumar and PW-3 Dr. Amit Anand, 7 Rai Sandeep v. State (NCT of Delhi), (2012) 8 SCC 21, Naresh v. State of Haryana, (2023) 10 SCC 134 and Phool Singh v. State of M.P., (2022) 2 SCC 74 C.A. No. 158/2020 Kuldeep v. State (GNCT of Delhi) Page 23 of 38 proved the MLC bearing EEB019765 as well as the nature of injury on the complainant to be 'simple' in nature. Even otherwise, it is settled law that from consistent testimony of the complainant/victim pertaining to the appellant grabbing hold of her and putting his hands inside the wearing shirt of the appellant, pressing of both the breasts of the complainant by the appellant, coupled with the appellant's attempt to remove her wearing slacks with an intention to get her naked on the date of incident, would, in the opinion of this Court be sufficient to establish the offences under Sections 354/354B IPC against the appellant. In this regard, it is pertinent to make reference 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 at night by a stranger, amounts to violation of modesty of a woman. In fact, in the said decision, the Hon'ble Court while upholding conviction of the accused therein for the offence under 451/354 IPC, inter alia, affirmed 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 C.A. No. 158/2020 Kuldeep v. State (GNCT of Delhi) Page 24 of 38 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."
(Emphasis supplied)
21. At this stage, in order to further comprehensively analyze the facts and circumstances of the present case it is germane to appreciate the ingredients of the offences with which the appellant has been convicted by the Ld. Trial Court. In this regard, this Court outrightly deems it apt to consider the provisions under Sections 354 and 354B IPC, ingredients as well as satisfaction thereof in the present case. In order to appreciate the same, this Court deems it pertinent to refer to the decision of the Hon'ble Supreme Court8 in Vidyadharan v. State of Kerala, (2004) 1 SCC 215, wherein while explicating the basic ingredients of Section 354 IPC, the Hon'ble Court noted as under;
"9. In order to constitute the offence under Section 354 mere knowledge that the modesty of a woman is likely to be outraged is sufficient without any deliberate intention of having such outrage alone for its object. There is no abstract conception of modesty that can apply to all cases. (See State of Punjab v. Major Singh [AIR 1967 SC 63 : 1967 Cri LJ 1] .) A careful approach has to be adopted by the court while dealing with a case alleging outrage of modesty. The essential ingredients of the offence under Section 354 IPC are as under:
(i) that the person assaulted must be a woman;
8 Premiya v. State of Rajasthan, (2008) 10 SCC 81 C.A. No. 158/2020 Kuldeep v. State (GNCT of Delhi) Page 25 of 38
(ii) that the accused must have used criminal force on her; and
(iii) that the criminal force must have been used on the woman intending thereby to outrage her modesty.
10. Intention is not the sole criterion of the offence punishable under Section 354 IPC, and it can be committed by a person assaulting or using criminal force to any woman, if he knows that by such act the modesty of the woman is likely to be affected. Knowledge and intention are essentially things of the mind and cannot be demonstrated like physical objects. The existence of intention or knowledge has to be culled out from various circumstances in which and upon whom the alleged offence is alleged to have been committed..."
(Emphasis supplied)
22. Evidently, the ingredients of Section 354 IPC, as expounded by the Hon'ble Supreme Court in the aforesaid dictate relates to; (i) commission of criminal assault or use of criminal force on a person, who is a woman; (ii) use of criminal force on such victim by the aggressor/accused; and (iii) use of criminal force upon such a woman with a mens rea (intention or knowledge) to 'outrage her modesty'. Apposite to note at this stage in this regard that the Hon'ble Supreme Court in State of Punjab v. Major Singh, 1966 SCC OnLine SC 51, while confronted with the issue whether a female child of seven-and-a- half months could be said to be possessed of 'modesty' which could be outraged, inter alia, observed as under;
"15. I think that the essence of a woman's modesty is her sex. The modesty of an adult female is writ large on her body. Young or old, intelligent or imbecile, awake or sleeping, the woman possesses a modesty capable of being outraged. Whoever uses criminal force to her with intent to outrage her modesty commits an offence punishable under Section 354. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very C.A. No. 158/2020 Kuldeep v. State (GNCT of Delhi) Page 26 of 38 relevant, but its absence is not always decisive, as for example, when the accused with a corrupt mind stealthily touches the flesh of a sleeping woman. She may be an idiot, she may be under the spell of anaesthesia, she may be sleeping, she may be unable to appreciate the significance of the act; nevertheless, the offender is punishable under the section."
(Emphasis supplied)
23. Appositely, in the aforesaid dictate, the Hon'ble Supreme Court overtly expounded that the sense of modesty in all women is not the same for all and that the same may vary from woman to woman. Nonetheless, considering that the essence of a woman's modesty is her sex, touching of the victim's body, breasts and mouth by an accused (the appellant in the instant case), without the consent of the complainant/victim and that too at night, would indubitably and plainly fall within the four corners of the provisions under Section 354 IPC. Needless to mention at this stage, the identity of the appellant; his presence at the scene of the incident; commission of the acts/incident involved, i.e., commission of criminal force and assault by the appellant herein by touching the breasts and mouth of the victim at night and further subjecting the victim to unwelcome advances of sexual overtone in the instant case, in the opinion of this Court, are sufficient to bring home the charges under Section 354 IPC against the appellant in the present case. Further, considering the essential ingredients of the offence under Section 354B, i.e., assaulting and/or using criminal force against the victim/complainant, "with the intention of disrobing or compelling her to be naked", in light of the provisions under Section 71 IPC9, plainly and unambiguously also/additionally 9 Reference also made to the decision of the Hon'ble High Court of Delhi in T. Manikadan v. State (Govt. of NCT of Delhi), 2017 SCC OnLine Del 6440, wherein the Hon'ble Court C.A. No. 158/2020 Kuldeep v. State (GNCT of Delhi) Page 27 of 38 point out towards the guilt of the appellant for the offence under Section 354B IPC, as well. Evidently, from the facts of the present case, the ingredients of offence under Section 354B IPC, i.e., (i) assault or use of criminal force by any man on any woman or abetment of such act; and (ii) such accused's mens rea, i.e., the intention of disrobing or compelling the woman to be naked, clearly stand established in the present case, considering the persistent statement of the prosecutrix that the appellant on the fateful day was pulling her wearing slacks with an attempt to get her naked. Apposite to further note at this stage that in order to bring home the charges/conviction under Section 354B IPC, it is irrelevant whether or not the accused was successful in disrobing a woman, mere use of criminal force with an intent to disrobe by the accused is sufficient. Reference in this regard is made to the decision of the Hon'ble High Court of Calcutta in Gobinda Ghosh v. The State of West Bengal, C.R.A. No. 152 of 2018, dated 09.02.2022, wherein the Hon'ble Court observed as under;
"Careful reading of Section 354B suggests that even if an accused does not have any intention to commit rape, he may be held guilty for committing the offence of disrobing a woman. Even in Section 354B it is not required for the prosecution to prove that the victim was actually disrobed used of criminal force with the intent to disrobe by the accused is sufficient to bring home the charge under Section 354B of the Indian Penal Code."
(Emphasis supplied)
24. As far as the appellant's conviction under Section 506 part II of IPC is concerned, in light of the foregoing discussion, this Court is of the considered opinion and in held that conviction can be simultaneously maintained under Section 354 and 354A IPC. Similar analogy would apply to the present case as well.
C.A. No. 158/2020 Kuldeep v. State (GNCT of Delhi) Page 28 of 38concurrence with the finding of the Ld. Trial Court that from the consistent deposition of the complainant regarding the appellant threatening the complainant/victim to kill her, in the facts and circumstances surrounding the time of occurrence, stands duly proved against the appellant. Relevantly, the Hon'ble Supreme Court in Manik Taneja v. State of Karnataka, (2015) 7 SCC 423, while dealing with the ingredients of offence under Section(s) 503/506 IPC, inter alia, observed as under;
"11. Section 506 IPC prescribes punishment for the offence of criminal intimidation. "Criminal intimidation" as defined in Section 503 IPC is as under:
"503. Criminal intimidation.--Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.
Explanation.--A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section."
A reading of the definition of "criminal intimidation" would indicate that there must be an act of threatening to another person, of causing an injury to the person, reputation, or property of the person threatened, or to the person in whom the threatened person is interested and the threat must be with the intent to cause alarm to the person threatened or it must be to do any act which he is not legally bound to do or omit to do an act which he is legally entitled to do."
(Emphasis supplied)
25. Evidently, for bringing conviction under Section 506 of IPC, the prosecution is required to prove that the; (i) accused C.A. No. 158/2020 Kuldeep v. State (GNCT of Delhi) Page 29 of 38 threatened some person; (ii) such threat must extend to causing any injury to his person, reputation or property, or to the person, reputation or property of someone in whom he was interested; and (iii) the accused did so with intent to cause alarm to that person, or to cause that person to do any act which he was not legally bound to do or omit to do an act which he is legally entitled to do as a means of avoiding the execution of such threat. Pertinently, the Hon'ble High Court of Orissa in Amulya Kumar Behera v. Nabaghana Behera, 1995 SCC Online Ori 317, while explicating the meaning of the word, 'alarm' used under Section 503/506 IPC, noted as under;
"...The threat must be intended to cause alarm from which it follows that, ordinarily, it would be sufficient for that purpose. The degree of such alarm may very in different cases, but the essential matter is that it is of a nature and extent to unsettle the mind of the person on whom it operates and take away from his acts that element of free voluntary action which alone constitutes consent. The case where the threat produces an alarm is comparatively a simple one, for all that has then to be proved is that threat was given and that the alarm was due to the threat: but where the threat has not that effect, it involves a question whether it was sufficient to overcome a man of ordinary nerves. The Court may hold it to be an empty boast, too insignificant to call for penal visitation of Section
506. "Intimidate" according to Webstar's Dictionary means" (1) to make timid, make afraid, overawe; (2) force or deter with threats or violence, cow". Threat referred to in the Section must be a threat communicated or uttered with intention of its being communicated to the person threatened for the purpose of influencing his mind. Question whether threat amounts to a criminal intimidation or not does not depend on norms of individual threatened if it is such a threat as may overcome ordinary free will of a man of common firmness. "Threat" is derived from Anglo-sexam word "threotou to life", (harass). It is the dicleration of an intention to C.A. No. 158/2020 Kuldeep v. State (GNCT of Delhi) Page 30 of 38 inflict punishment, loss or pain on another. "Injury" is defined in Section 44. It involves doing of an illegal act. If it is made with intention mentioned in the section, it is an offence. Whether threat was given with intention to cause alarm to the person threatened has to be established by evidence to be brought on record..."
(Emphasis supplied)
26. Significantly, in the aforenoted dictate, the Hon'ble Court explicitly observed that the mens rea/ intention envisaged under Section 503/506 IPC must be to cause alarm to the victim and whether or not such a victim is alarmed, is not of any consequence. Manifestly, in the instant case, from the consistent testimony of the complainant pertaining to the appellant's inducing threat on her to kill her at the time of incident, the ingredients of offence under Section 503/506 IPC, in so far as they relate to inter alia extending threat by the appellant, with an intention to alarm the complainant and that too to cause injury, i.e., death in the instant case stand established, unambiguously bringing home the charges/conviction under Section 506 part II of IPC against the appellant herein. It is fitting to observe here that the Hon'ble High Court of Bombay in Keshav Baliram Naik v. State of Maharashtra, 1995 SCC OnLine Bom 481, upheld the conviction of the accused who was alleged of touching the prosecutrix's (therein) hand while she was sleeping, removing her quilt, putting his hand in the prosecutrix's clothes, threatening to murder her in the process, in case the prosecutrix revealed his identity. In fact, in the said case, the prosecutrix had actually shouted, 'mother', upon which her parents got up and reprimanded the appellant, who thereafter fled away.
27. Apropos the foregoing discourse, it is pertinent here C.A. No. 158/2020 Kuldeep v. State (GNCT of Delhi) Page 31 of 38 to deal with the contention of the Ld. Counsel for the appellant relating to present proceeding being malicious and emanating out of ill-will is concerned, same too, does not find favour with this Court. In this regard, it is pertinent to observe that though the appellant during the cross examination of the complainant/victim/PW1 endeavored to propose that the present proceedings were initiated for the reason of appellant's friendly relation with one, Dhanbhai, who admittedly was in inconducive/inimical relationship/terms with the complaint, however, this Court is in concurrence with the observations made by the Ld. Trial Court in relation to the appellant's said defence. Needless to accentuate for the said purpose that the appellant had neither adduced said Dhanbhai as evidence before the Ld. Trial Court, nor placed on record, any complaint/material suggesting that the complainant used to threaten and pressurize the appellant to grab money out of him. Needless to mention that though, the complainant in her cross examination affirmed about her dispute with Dhanbhai, however, denied that she was aware of the appellant's friendly terms with him/Dhanbhai. Therefore, under such circumstances the defence proposed by the appellant does not appear to be convincing even on 'preponderance of probabilities' or to cast a shadow of doubt on the otherwise consistent statement of the complainant in relation to the offences in question. Pertinent to further observe that the said defence does not find mention even in the appellant's statement under Section 313 Cr.P.C., wherein the appellant merely stated that he has been falsely implicated in the present case due to enmity and pressurize tactics to grab money, which is altogether a difference defence. Needless to mention, even in the present appeal, the C.A. No. 158/2020 Kuldeep v. State (GNCT of Delhi) Page 32 of 38 appellant has endeavored to raise a new defence inter alia to the effect that the complainant is a habitual drunkard, persistently demanding money from persons regarding the same, and it was only when the appellant refused to succumb to such monetary demand of the complainant, that the appellant was roped into the present false and frivolous case. Clearly, the defence of the appellant is not only inconsistent and uncorroborated, rather, appears to be an afterthought, to wriggle out of present proceedings. Needless to further state that the possibility of false implication of the appellant in the instant case is ruled out, considering the prompt and immediate reporting of the present case by the prosecutrix before the concerned police authorities.
28. Germane at this stage for the purpose of an exhaustive analysis on the dispute in hand this Court outrightly reaffirms that in its opinion, there is no delay in lodging the FIR in the instant case, considering the incident in question is stated to have occurred at late night and the FIR was got lodged/registered by the complainant, promptly, the following morning. However, even presuming that there was a delay, same would not be of much consequence in the instant case. Apposite to note in this regard that this Court is conscious of the fact that the superior courts have persistently cautioned that in the instances/incidents of sexual offences, delay in the lodging of the FIR can be due to variety of reasons, particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family, consequently, such delay(s) cannot be read against the prosecutrix of a case. In fact, in this regard, the Hon'ble Apex Court in Dildar Singh v. State C.A. No. 158/2020 Kuldeep v. State (GNCT of Delhi) Page 33 of 38 of Punjab, (2006) 10 SCC 531, overtly explicated as under;
"6. ...A girl in a tradition-bound non-permissive society would be extremely reluctant even to admit that any incident, which is likely to reflect upon her chastity, had occurred, being conscious of the danger of being ostracised by the society or being looked down by the society. Her not informing anyone about the incident in the circumstances cannot detract from her reliability. In normal course of human conduct an unmarried girl would not like to give publicity to the traumatic experience she had undergone and would feel terribly embarrassed in relation to the incident to narrate such incident. Overpowered, as she may be, by a feeling of shame her natural inclination would be to avoid talking to anyone, lest the family name and honour is brought into controversy. Thus, delay in lodging the first information report cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same on the ground of delay in lodging the first information report. Delay has the effect of putting the court on guard to search if any explanation has been offered for the delay and, if offered, whether it is satisfactory"
(Emphasis supplied)
29. Clearly, upshot of the foregoing discussion is that ordinarily the family of victim of sexual offences, tend to be hesitant in reporting the matter to the police, lest their life and family's reputation may be put to jeopardy. Ergo, under such circumstances, delay in lodging the first information report is quite a normal phenomenon and cannot be read against a prosecutrix. In fact, in this regard, the Hon'ble Supreme Court in Ramdas v. State of Maharashtra, (2007) 2 SCC 170, while also appreciating the factors leading to delay of lodging of FIR under such instances noted as under;
"24. ...In the case of sexual offences there is another consideration which may weigh in the mind of the court i.e. the initial hesitation of the victim to report the matter to the police which may affect her family life and family's reputation.C.A. No. 158/2020 Kuldeep v. State (GNCT of Delhi) Page 34 of 38
Very often in such cases only after considerable persuasion the prosecutrix may be persuaded to disclose the true facts. There are also cases where the victim may choose to suffer the ignominy rather than to disclose the true facts which may cast a stigma on her for the rest of her life. These are cases where the initial hesitation of the prosecutrix to disclose the true facts may provide a good explanation for the delay in lodging the report. In the ultimate analysis, what is the effect of delay in lodging the report with the police is a matter of appreciation of evidence, and the court must consider the delay in the background of the facts and circumstances of each case. Different cases have different facts and it is the totality of evidence and the impact that it has on the mind of the court that is important. No straitjacket formula can be evolved in such matters, and each case must rest on its own facts..."
(Emphasis supplied)
30. Categorically, mere lapse of time between the occurrence of an incident to that of reporting thereof by a prosecutrix to the concerned authorities cannot be the sole ground to outrightly discard her version of incident. On the contrary, courts are duty bounded to consider the facts leading upto such delay, in light of the factual scenario as well as the realities of the society. Even otherwise, this Court is conscious of the fact that no universal rule of conduct governs the behavior of the victims/witnesses of incidents. As a matter of fact, it is quite compressible that preceptors of a crime may react differently under such situations10; "some witnesses get a shock, some become perplexed, some start wailing and some run away from the scene and yet some who have the courage and conviction come forward either to lodge an FIR or get themselves examined immediately." Concomitantly, law does not prescribe a 10 Lahu Kamlakar Patil v. State of Maharashtra, (2013) 6 SCC 417 C.A. No. 158/2020 Kuldeep v. State (GNCT of Delhi) Page 35 of 38 behavioral pattern to be attributed to a prosecutrix/victim of a sexual offence to give sanctity to her entreaty for justice. In fact, the Hon'ble Supreme Court in Mukesh v. State of Chhattisgarh, (2014) 10 SCC 327, in this regard, explicitly observed as under;
"14. Further, the accused has taken the defence that the prosecutrix did not call out for help, despite the fact that she had managed to free herself. However, we hold that, in the situation, where the prosecutrix was under the threat of being raped by the appellant/accused, we cannot expect her to be prudent and meticulous in her thought process. Hence, for her running away from the situation would have been the best possible thing to do at the time, therefore, not calling out for help does not mean that the appellant/accused did not commit the offence. The state of mind of the prosecutrix cannot be precisely analysed on the basis of speculation because each person reacts differently to a particular stressful situation."
(Emphasis supplied)
31. Consequently, while applying the aforesaid principles to the facts of the present case (it is reiterated), this Court does not find itself convinced that there was any delay in lodging of the FIR by the complainant/victim in the present case or that the same being designed out of ill will or malice. Apposite to further note in this regard that it has been/is a consistent case of the prosecution/prosecutrix regarding the presence of the appellant at the spot at relevant point in time; the appellant grabbing the complainant from behind, appellant's putting his hand on the complainant's mouth as well as threatening to kill her; the appellant thereafter, putting his hand inside the complainant's wearing shirt and starting to press both her breasts and thereafter, appellant's pulling her wearing slacks downward with an attempt to make her naked and thereby, outraging C.A. No. 158/2020 Kuldeep v. State (GNCT of Delhi) Page 36 of 38 her/complainant's modesty; the police reaching the spot of incident; and the complainant/victim getting her complaint/statement recorded before the concerned police officials on the day, following the incident (next day to Shivratri). Needless to mention, the said factum finds credence from the testimony of PW7 ASI Pramod Kumar, who deposed before the Ld. Trial Court regarding the complainant informing him about the incident in question upon him reaching the spot and subsequently, identifying the appellant as the perpetrator thereof. Wherefore, appreciating the consistent statement of PW1 and PW7 before the Ld. Trial Court, in the background of the aforesaid judicial precedents as well as the gravity of the incident which the prosecutrix is stated to have experience, the conduct of the victim in getting recorded the FIR on the following morning cannot be faulted with. Needless to mention that even on 25.02.2017, the complainant was examined before the concerned Doctors at LNJP Hospital as late as 01:25 a.m. and the FIR in question was recorded on the same date, i.e., on 25.02.2017 at 08:10 a.m. Nonetheless, for the sake argument, presuming there was a delay in lodging of FIR in the instant case, same stands duly explained/elucidated in light of the foregoing.
32. Consequently, in conspectus of the above and inter alia keeping in view consistent and 'sterling' testimony of the complainant/victim/prosecutrix/PW1; the documents placed on record, including the complainant's MLC; and the statement(s)/ testimonies of the prosecution witnesses inter alia that PW2, PW3 and PW7, charges in question/case stand duly proved against the appellant herein. In fact, from the aforesaid, it is proved 'beyond reasonable doubt' that the appellant, on C.A. No. 158/2020 Kuldeep v. State (GNCT of Delhi) Page 37 of 38 24.02.2017 at around 09:00 p.m. at footpath near Narain Trust, Tikri Bhawan, DDU Marg, Delhi, intentionally outraged the modesty of the victim by use of criminal force on the victim intending to outrage or knowing it to be likely that he will thereby outrage her modesty; assaulted and/or used of criminal force to the complaint/prosecutrix with an intention to disrobing her by removing her clothes; as well as criminally intimidated the complainant/victim by extending threats to her to kill her, thereby made himself liable for the offences punishable under Sections 354, 354B and 506 (part II) of IPC, respectively.
33. Conclusively, in view of the above discussion, the present appeal deserves to be rejected/dismissed and is hereby dismissed. The judgment dated 01.11.2019, passed by the learned Metropolitan Magistrate/ Ld. MM-01, Mahila Court, Central, Tis Hazari Courts, Delhi, in case bearing "State v. Kuldeep, Crl. Case No. 5634/2017", arising out of FIR No. 56/2017, PS. I.P. Estate, convicting the appellant for the offences punishable under Sections 354/354B/506 (part-II) of IPC is hereby upheld. Consequently, the appellant/convict present before the court is taken into custody.
34. Order on Sentence shall be passed after compliance, in terms of judgment of Hon'ble Delhi High Court titled as Karan v. State (NCT of Delhi), Crl. Appeal 352/2020, dated 27.11.2020. The appellant as well as the Ld. Addl. PP for the State have already filed their respective affidavits.
Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2024.01.31 10:05:49 +0530 Announced in the open Court (Abhishek Goyal) on 30.01.2024. ASJ-03, Central District, Tis Hazari Courts, Delhi C.A. No. 158/2020 Kuldeep v. State (GNCT of Delhi) Page 38 of 38