Delhi District Court
Anu Pendra vs State on 19 April, 2024
IN THE COURT OF MS. SADHIKA JALAN,
ADDITIONAL SESSIONS JUDGE (FTSC) (RC), SOUTH WEST
DISTRICT, DWARKA COURTS, NEW DELHI.
In the matter of:
CNR No.DLSW01-014219-2019
CA No. 539/2019
Anupendra,
S/o Sh. Bhagwati Prasad,
R/o 1314, Preeti Vihar, Ganesh Pur,
Haridwar, Uttrakhand.
...Appellant
versus
The State
(NCT of Delhi)
...Respondent
Date of institution of appeal : 17.12.2019
Date on which judgment reserved : 24.02.2024
Date on which judgment pronounced : 19.04.2024
JUDGMENT
1. This is a criminal appeal under Section 374(3), Code of Criminal Procedure (hereinafter referred to as CrPC), filed by Anupendra v. State CA No. 539/2019 Page 1 of 15 the appellant/convict namely Anupendra, against judgment dated 19.11.2019 and order on sentence dated 22.11.2019 passed by the Court of learned Metropolitan Magistrate (Mahila Court), South West District, Dwarka Courts, New Delhi (hereinafter referred to as learned Trial Court) in FIR No. 956/2015, under Section 354 and 509 Indian Penal Code (hereinafter referred to as IPC), Police Station Vikas Puri, tilted as 'State v. Anupender'.
FACTUAL MATRIX OF THE CASE--
2. Succinctly put, as per the charge-sheet, on 06.10.2015, at about 03:30 PM at Dhauli Piyu Main Najafgarh Road, appellant made indecent gestures and winked at the complainant with intention to insult her modesty and also used criminal force upon her and kissed her with intention to outrage her modesty. The complainant gave her written complaint to the concerned police station upon which FIR was registered under Section 354 and 509 IPC.
3. After completion of investigation, charge-sheet was filed by the Investigating Officer against the appellant/convict. Thereafter, cognizance for offence punishable under Section 354 and 509 IPC was taken by the learned Metropolitan Magistrate vide order dated 27.01.2017 and charge was framed against the appellant/accused on 06.04.2018, to which he pleaded not guilty and claimed trial.
Anupendra v. State CA No. 539/2019 Page 2 of 15
4. In order to prove its case, the prosecution examined in total six witnesses. After closing of prosecution evidence, the appellant/convict was examined under Section 313 CrPC read with Section 281 CrPC, where he took the defence that he was innocent and had been falsely implicated in the present case. He stated that he had not done anything and did not sit with the complainant. He further submitted that he did not want to lead any evidence in his defence.
5. The learned Trial Court after hearing arguments, vide its impugned judgment dated 19.11.2019 convicted the appellant under Section 354 and 509 IPC and vide its order on sentence dated 22.11.2019, sentenced the appellant to undergo simple imprisonment for a period of one year for offence punishable under Section 354 IPC and six months for the offence punishable under Section 509 IPC. He was further sentenced to pay fine of Rs. 1,000/- each for both the offences. In default of payment of fine, he is to undergo simple imprisonment for a period of 15 days.
6. Feeling aggrieved, the appellant challenged the impugned judgment and order on sentence of the learned Trial Court by filing the present appeal, on the following grounds--
i. The impugned judgment and order on sentence of the learned Trial Court are wrong, illegal and contrary to the facts and circumstances of the case.
Anupendra v. State CA No. 539/2019 Page 3 of 15 ii. The learned Trial Court failed to appreciate that the statement under Section 161 CrPC, statement under 164 CrPC and statements made during the testimony before the Court have several contradictions and the benefit of these should go to the appellant.
iii. It is also stated that no impartial witness was examined to corroborate the testimony of the complainant.
iv. The learned Trial Court failed to appreciate that statement of witnesses presented by the prosecution are also contradictory.
v. The learned Trial Court should have considered that the present FIR was registered only as the father of the complainant was in Delhi Police.
vi. The learned Trial Court has not taken note of the many discrepancies in the version of the complainant in her initial complainant and subsequent statements. Such as the complainant in her complaint stated that the appellant was sitting in the women seat when she boarded the bus, but in her statement under Section 164 CrPC stated that there was no seat available at the time and the appellant was standing.
vii. The learned Trial Court has failed to appreciate that it is the duty of the prosecution to prove his case beyond reasonable doubt but prosecution has failed to prove Anupendra v. State CA No. 539/2019 Page 4 of 15 above said case beyond reasonable doubt, therefore, the appellants be acquitted in the present case.
7. This Court has carefully perused the case record and have heard arguments advanced by learned Additional Public Prosecutor for the State.
8. In order to sustain conviction, it has to be seen whether the prosecution has proved its case beyond reasonable doubt.
9. The essential ingredients of the Section 354 IPC are as follows-
1. That the assault must be on a woman.
2. That the accused must have assaulted or used criminal force on her.
3. That the criminal force must have been used on the woman with the intention to outrage her modesty.
10. Criminal force has been defined in IPC at Section 350. To summarise, it is when someone uses force to any person without that persons consent, in order to the committing of any offence with the intention and knowledge that the force would cause injury or fear or annoyance.
11. Section 351 IPC defines assault as follows--
"Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person Anupendra v. State CA No. 539/2019 Page 5 of 15 present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit as assault."
12. Before proceeding further however, it is important to analyse the meaning of the term 'modesty' which has not been defined in the Indian Penal Code.
13. In the case of Raju Pandurang Mahale v. State of Maharashtara and Anr., 2004 (2) SCR 287, it was held that what constitutes an outrage to female modesty is nowhere defined. It stated as follows--
"What constitutes an outrage to female modesty is nowhere defined. The essence of a woman's modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty in this Section is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex."
14. The ultimate test for ascertaining whether modesty has been outraged is whether the action of the offender is such as could be perceived as one which is capable of shocking the sense of decency of a woman. Reliance is placed upon Tarkeshwar Anupendra v. State CA No. 539/2019 Page 6 of 15 Sahu v. State of Bihar, (2006) 8 SCC 560 and State of Punjab v. Major Singh, AIR (1967) SC 63.
15. Further, as for the element of intention and knowledge in Vidyadharan v. State of Kerala, (2004) 1 SCC 215, the Hon'ble Supreme Court, observed as under--
"9. In order to constitute the offence under S. 354 mere knowledge that the modesty of a woman is likely to be outraged is sufficient without any deliberate intention having such outraged alone for its object. There is no abstract conception of modesty that can apply to all cases.
10. Intention is not the sole criteria of the offence punishable under S. 354, I.P.C. 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."
16. Thus, the word 'modesty' is thus not to be interpreted with reference to the particular victim of the act, but as an attribute associated with female human beings as a class. The Anupendra v. State CA No. 539/2019 Page 7 of 15 determination of whether the modesty of a woman has been outraged is thus not from perspective of the victim alone but also from the larger perception of the whole class.
17. In the instant matter, it has been argued by the appellant/convict that there are several discrepancies in the statement of the complainant from her initial complaint, to her statement recorded under Section 164 CrPC as well as the testimony given in the Court.
18. It is argued by the Counsel for the appellant that these contradictions and improvements of the prosecutrix go to the root of the prosecution case and therefore the appellant is liable to be acquitted.
19. He has further argued that the learned trial Court has not noted that the driver and the conductor of the bus have not supported the prosecution case and stated that they did not infact witness the incident themselves.
20. Before proceeding further to analyse the judgement passed as well as the evidence before the learned Trial Court, it feels pertinent to state the legal Latin maxim 'fiat justitia ruat caelum' which means 'let justice be done though the heavens fall', underscores the principle that justice must prevail regardless of the consequences. It emphasizes that the primary objective of a court conducting a case is not only to ensure that an innocent person is not wrongfully punished but also to ensure that the guilty do not escape justice.
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21. In the matter at hand, it is the case of the prosecution that the complainant while travelling in the bus was harassed and accosted by the appellant, due to which she slapped him. A quarrel ensued and they were separated. Thereafter, when the complainant was about to leave, the appellant held her, pushed her, hugged her and kissed her against her wishes. The passengers in the bus intervened and the bus was taken to the police station so that a complaint could be filed against the appellant.
22. It is correct that there are improvements in the statement of the complainant from the initial complaint. This infact was also noted by the learned Trial Court while passing judgment. However, to better appreciate the evidence of the complainant, it is important to determine whether the account of the complainant is one which would be considered an 'exaggerated version' or a 'false version'. There is a marked difference between the two. An exaggerated statement contains both truth and falsity, whereas a false statement has no grain of truth in it. The Supreme Court in Achhar Singh v. State of Himachal Pradesh, 2021 SCC OnLine SC 368, had noted that witnesses may sometimes provide exaggerated accounts of events, particularly in high-stakes or emotionally charged situations. However, the court distinguished between exaggerated statements and false statements, recognising that even if the details are embellished, the core truth may still Anupendra v. State CA No. 539/2019 Page 9 of 15 remain. It had held that a Court of law has a duty to sift truth from falsehood. It said that it is only in a case where the grain and chaff are so inextricably intertwined that if separated no case would survive, then only should the whole evidence be discarded.
23. In the instant matter, it is admitted that the complainant and the appellant are not known to each other. Their first interaction happens on the day of the alleged incident.
24. In the instant matter, PW-1 deposed regarding the appellant winking at her and rolling his eyes at her. She has stated that despite asking him to stop he stared at her and blew her kisses. She thereafter slapped him. Appellant was asked by others on the bus to sit properly. He however after a while, again came and sat next to her. When she got up to leave, he pulled her and pushed her down over the seat and kissed her on the lips, after which he was beaten by the passengers in the bus.
25. It is contended that the version of the complainant however has several contradictions where in her statement under Section 164 CrPC she stated that she was not sitting when the appellant entered the bus and that he kept his hand on her hand while she standing in the bus, has not been mentioned otherwise. There are contradictions as the stop from which the accused boarded the bus. Whether she was kissed on the cheek or the lips. There are also certain other such improvements. However as noted above, it human nature to exaggerate facts Anupendra v. State CA No. 539/2019 Page 10 of 15 in certain situations. At the core, the complainant has stuck to the basic incident that unfolded on the alleged day, in the bus. She has stated that the indecent gestures were made by the accused, which even led her to slap him. The gestures were such that it merited interference by those present. Another quarrel ensued after this, when he held, pushed her and kissed her. In these material facts, her statement stands corroborated by other witnesses.
26. PW2, the conductor of the bus stated that the appellant had misbehaved with a lady passenger. The ATI present, had to intervene and separate the two passengers and had taken the appellant to one corner of the bus. He stated upon cross examination that he did not see the entire incident as he was issuing tickets, but had seen the appellant being slapped by the complainant. He stated also that though he had not seen the kiss but he saw that they were very close.
27. PW3, the driver of the bus, stated that a quarrel took place between a female and male passenger abroad the bus he was driving on the day of the alleged incident. He stated that because of the quarrel he was asked to stop the bus and checking staff present and other public persons separated the female and male passenger. He stated another quarrel again broke out after which he was asked to take the bus to the nearest police station.
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28. Though both PW-2 and PW-3 had stated that they did not see the exact incident, but both corroborate as to the time line of events and that two incidents of quarrel took place between the complainant and the appellant on that day. Further incident created a furor and the bus was taken to the police station to complain against the accused.
29. PW-4 submitted that he was on duty as checking staff, on the bus, on the day of the incident. He categorically stated that he saw the appellant molesting the female passenger by touching her. He stated that the female passenger asked him to stop but he did not do so and she slapped him. He stated that he was sitting opposite to them at the time, he intervened and asked the appellant to stop. He stated that thereafter, when the female passenger got up, appellant went to her seat and kissed her. He stated that he thereafter separate them with great difficulty and upon asking of the passengers of the bus, appellant was handed over to the police. He was cross examined after 4 years of the incident and stated that he did not see the kiss but did see the appellant fall on the complainant.
30. PW-4 clears supports that the appellant had misbehaved with the complainant and being seated opposite he had seen the appellant do so. He has corroborated on indecent gestures being done by the accused at the beginning as well as the fact that he again returned to the seat of the complainant. He too Anupendra v. State CA No. 539/2019 Page 12 of 15 has corroborated the time line of events as stated by the complainant.
31. In the instant matter, the appellant has misbehaved with the complainant by passing remarks, touching and staring at her, making gestures, sitting close to her despite several requests to move and also kissing her. The actions of the appellant are such that would of shock the sense of decency of a woman. The appellant has therefore been rightly convicted for offence under Section 354 IPC.
Offence under Section 509 IPC
32. An offence under Section 509 IPC also deals with the offence of insulting the modesty of a woman similar to Section 354 IPC. Section 509, IPC reads as under--
"509. Word, gesture or act intended to insult the modesty of a woman--Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year or with fine or with both."
33. On a bare reading of this Section, it is clear that for an offence to fall with the purview of Section 509 IPC, it must have been committed with the intention to insult the basic modesty of Anupendra v. State CA No. 539/2019 Page 13 of 15 any woman or to intrude upon the privacy of that woman. Intention is thus an essential ingredient.
34. In the instant case, the learned Trial Court rightly noted that the the complainant has specifically stated that the accused was making indecent gestures by repeatedly winking, rolling his eyes at her and blowing flying kisses at her. It was further noted by the learned Trial Court that that no question or suggestion was given to the witness to discredit her on this point hence testimony of the complainant remains unchallenged and uncontroverted in this regard. The act of accused repeatedly winking at her and flying kisses at her clearly amounts to intentional insult to the modesty of the complainant. The intention of the accused can further be gauged from the circumstances of the events, the fact that the two were not known to each other, the reaction of PW-4, the fact that PW-3 was made to stop the bus due to outcry raised on the actions of the accused.
35. No ground has been shown for interference with the judgment of the learned Trial Court. There is no infirmity or irregularity or impropriety in the impugned judgment. Accordingly, appeal is without any merit and the same is dismissed.
36. The bail bonds under Section 437A CrPC remains in force for another 6 months.
37. Trial Court Record be sent back along with copy of this order.
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38. File be consigned to record room after due compliance.
Pronounced in open Court on this 19th day of April, 2024 (SADHIKA JALAN) Additional Sessions Judge, FTSC (RC) South West District, Dwarka Courts, New Delhi, 19.04.2024 Anupendra v. State CA No. 539/2019 Page 15 of 15