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Delhi District Court

Jogender vs State on 17 May, 2024

              IN THE COURT OF SH. PURSHOTAM PATHAK, ASJ-05,
                   SOUTH DISTRICT, SAKET COURTS : DELHI
              CRL. APPEAL No.291/2019
              CNR No. : DLST01-005198-2019

              Jogender
              S/o Late Sh. Kishan
              R/o S-85/4, Lal Gumbad
              Panchsheel Park
              Malviya Nagar,
              New Delhi.                                           .........APPELLANT
                                                 VERSUS
              The State Of Delhi
              Through PP                                           ......... RESPONDENT

              DATE OF INSTITUTION                                  : 01.08.2019
              ARGUMENTS HEARD ON                                   : 12.02.2024
              DATE OF JUDGMENT                                     : 17.05.2024


              JUDGMENT

1. The present appeal under Section 374 Cr.P.C. has been filed by the appellant against the impugned judgment of conviction dated 26.06.2019 and order on sentence dated 08.07.2019 as passed by the court of Ld. MM-03 (Mahila Court), South, Saket, New Delhi. By the said judgment, the trial court has convicted the appellant for offences under Section 323/354 IPC. By order on sentence, appellant had been sentenced to undergo simple imprisonment for a period of one year and to pay fine of Digitally Rs.3,000/- for offence u/s 354 IPC and in case of default to signed by PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:

deposit the sum of fine, he shall undergo simple 2024.05.17 17:26:56 +0530 imprisonment for a period of 30 days. He has been further sentenced to simple imprisonment of two months with fine CA NO. 291 of 2019 Jogender Vs. State Page no. 1 of 10 of Rs.1000/- for offence U/s 323 IPC and in default of fine to undergo simple imprisonment for a period of 15 days.

2. The factual position has been noted by the Ld. Trial Court in following manner:-

"It is the case of prosecution that on 24.05.2014 at about 1.00 to 2.0 PM, while the victim/ complainant was going to nearby shop for purchasing the recharge coupan and when she reached in front of the house of Jogender, she saw Jogender and Devender standing there. She further alleged that Devender stopped her and caught hold of her hand and Jogender caught hold of the collor of her wearing top and pulled it (pakad kar kheench liya) due to which the same got torn. She also alleged that jogender caught hold of her breasts while saying that 'aaj ise sabak sikhate hain, taki harmre khilaf dubaraa shikayat karne ki hammat na kar saket' and they both started manhandling her, beating her and touching her inappropriately. Thereafter, she somehow managed to flee away from there. Then she dialed 100 number, police reached there and took her to hospital and as she was having severe body-ache and it was also late night that is why she had not given her statement on that day and got recorded the same on the next day. On the basis of said complaint of complainant, an FIR was lodged."

3. After completion of investigation, charge-sheet was filed against the appellant herein for offences punishable under Section 323/341/354/354B/34 IPC. On appearance of accused charge for offences punishable under Section 323/341/354/354B/34 IPC was framed against the appellant, to which he pleaded not guilty and claimed trial.

4. The prosecution has examined the complainant and four other witnesses to establish its case. The Trial court PURSHOTTAM has summarized their testimony in following manner:-

PATHAK "PW1: Ms. 'P' Complainant: - She deposed that that on 24.05.2015 Digitally signed by PURSHOTTAM (sic.), at noon between 01.00 to 02.00 pm, when she was going for PATHAK buying recharge coupon from a shop near to her house and when Date: 2024.05.17 she reached in front of accused Joginder's house, both accused 17:27:02 +0530 Joginder and Devender were standing there. As per her, Devender suddenly came in front of her and stopped her way and caught hold of her hand and also caught hold the collar of her T-shirt. She CA NO. 291 of 2019 Jogender Vs. State Page no. 2 of 10 further deposed that accused Joginder pulled her T-shirt due to which her T- shirt got torn and he also caught hold her breast. Thereafter, both accused beat her and also touched her body parts. She further stated that somehow she rescued herself and ran towards her home. After reaching her home, she dialled at 100 number. PCR came and took her to hospital where her treatment was done. On 25.05.2014, she along with her parents went to PS Malviya Nagar and gave her statement. She further deposed that her statement was recorded at PS Malviya Nagar which is Ex.PW1/A bearing her signature at point A. The said torn T-shirt was seized by the police vide seizure memo Ex.PW1/B bearing her signature at point A. Her statement was also recorded before the Ld. Magistrate at Saket Courts. Case property i.e. torn T-shirt was produced in the court and correctly identified by her which is Ex.P1. She further stated that mother of accused also gave beatings to her after 2-3 days for pressurizing her to withdraw the present case and she also threatened to kill her. Both accused also threatened her several times for withdrawing the present case by threatening her that in case she would not withdraw the present case something would happen to her due to which she got scared. She was cross-examined by Ld Counsel for accused and was discharged.

PW3 ASI Vijender Singh: He deposed that on 24.05.2014, he was posted as HC at PS Malviya Nagar, on the said date, after receiving DD no. 34A, he along with Ct Rajesh went to spot i.e. S-85, R/140, Lal Gummad Jhugi, Panchsheel Park where they came to know that injured had already been shifted to hospital and no eyewitness was found on the spot. Thereafter, after receiving information through DD entry no. 42B regarding admission of injured in SJ Hospital, they went to the said hospital where he came to know that injured had already been discharged. He further deposed that he collected the MLC of injured and thereafter they went to the house of injured where they met injured/complainant, who told them that she was not in a position to give her statement as she was suffering from pain and stated that she will give her statement on next day. He further stated that vide DD no. 82B PCR call was kept pending. On 25.05.2014 injured/complainant along with her guardian came to PS where she gave her statement which is Ex.PW1/A which was attested by him at point B. Thereafter, he prepared the rukka which is Ex.PW3/A bearing his signature at point A. As per him, rukka was handed over to DO for registration of FIR. After registration of FIR, the case was marked to SI Somveer by SHO for further investigation. He was cross examined by Ld Counsel for accused persons and was PURSHOTTAM discharged.

PATHAK PW5 SI Somveer: He deposed that on 25.05.2014, present case was Digitally signed marked to him for further investigation. During investigation, he by PURSHOTTAM along with complainant and WCt Sobha went to the spot where he PATHAK prepared the site plan at the instance of the complainant which is Date: 2024.05.17 17:27:16 +0530 Ex.PW5/A bearing his signature at point A. Thereafter, he went to the house of complainant where complainant handed over to him her CA NO. 291 of 2019 Jogender Vs. State Page no. 3 of 10 torn clothes which were seized by him vide seizure memo already Ex.PW1/A bearing his signature at point B. He recorded supplementary statement of the complainant and statement of other witnesses u/s 161 CrPC. On 26.05.2014, statement of complainant was got recorded before the Ld Magistrate, Saket Court. During investigation, on 24.06.2014, he along with Ct Deepak went to house of accused where both accused were arrested vide memos Ex.PW5/B and Ex.PW5/C both bearing his signature at point A and their personal search were also conducted vide memos Ex.PW5/D and Ex.PW5/E. As per him, he also recorded disclosure statement of both accused which are Ex.PW5/F and Ex.PW5/G bearing his signature at point A. He further stated that he also obtained the opinion regarding MLC no.96488, dated 24.05.2014. After completion of the investigation, he prepared the charge sheet and filed before the concerned court. He was cross-examined by Ld Counsel for accused persons and was discharged.

PW4 on Dr. Surender Goval: He identified the signatures of Dr Shaba Rehman Ex.PW2/A and on Ex.PW4/A. As per the said witness, Dr Shaba Rehman prescribed for X-ray cervical spine. He was cross-examined by ld counsel for accused and was discharged.

PW2 Hyatt Singh: He identified the signature of Dr Amarpreet Singh on MLC no. 96488/14 dated 24.05.2014 which is Ex4/A(OSR)"

5. Thereafter, prosecution evidence was closed and the statement of the accused was recorded. In defence evidence, the accused examined four witnesses. DW-1 Gautam Bhunia, who brought the photocopy of judgment titled as State Vs. Yogender @ Yogesh and Ors., FIR no. 887/14 PS Malviya Nagar, along with copy of order sheet (Ex. DW-1/A). DW-2 ASI Ratan Singh, who stated that he received rukka through W/ASI Clara Toppo on the basis of which he registered FIR 1566/15 u/s 313/366/376 IPC (Ex. DW-2/A). DW-3 HC Mahesh Kumar, brought the copy of order (Ex. DW-3/A) as per which record pertaining to the PURSHOTTAM PATHAK complainant upto period 31.12.2014 has been destroyed.

Surajkund District Faridabad, Haryana, dated 07.07.2013 17:27:22 +0530 (Ex. DW-4/A).

CA NO. 291 of 2019 Jogender Vs. State Page no. 4 of 10

6. Final arguments were heard by the Ld. Trial Court and vide impugned judgment dated 26.06.2019, the Trial Court acquitted the appellant/ accused for offences u/s 341/354B IPC and convicted him for offences u/s 323/354 IPC.

7. Aggrieved by the judgment dated 26.06.2019 and order on sentence dated 08.07.2019, the appellant/convict has filed the present appeal.

8. I have heard the arguments advanced by Ld. counsel for appellant as well as the Ld. Addl. PP for the State.

9. Ld. counsel for appellant argued that the appellant/ convict has been falsely implicated in this case. He also argued that the testimony of witnesses is full of lacunaes and contradiction and the whole prosecution case is unreliable. He submitted that the Ld. Trial Court failed to appreciate the points/ grounds raised by the appellant counsel during trial and has based its judgment on conjectures and surmises. Ld. counsel submitted that no sincere efforts were made to join the public witnesses. He argued that the Ld. Trial court failed to appreciate that no such incident had taken place. Further, he submitted that the impugned judgment and order on sentence are liable to be set-aside and appellant/ convict is entitled to be PURSHOTTAM PATHAK acquitted in this case.

Digitally signed 10. On the other hand, Ld. APP for the State has by PURSHOTTAM PATHAK argued that the judgment passed by the Ld. Trial Court is Date: 2024.05.17 17:27:27 +0530 well reasoned and no ground for setting-aside the same is CA NO. 291 of 2019 Jogender Vs. State Page no. 5 of 10 made out. Prosecution has examined five witnesses in support of its case and the said witnesses have duly proved the prosecution case. He submitted that the appeal filed by the appellants is without merit and same is liable to be dismissed.

11. I have duly considered the rival submissions. I have perused the record carefully.

12. Appellant has been convicted and sentenced for offences punishable under Section 323/354 IPC.

12.1. Section 354 IPC provides as under:-

"S. 354 Assault of criminal force to women with intent to outrage her modesty. Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will there by outrage her modesty, 1 [shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine].

12.2. Section 323 IPC provides punishment for voluntary causing hurt which has been defined u/s 321 and 319 IPC as under:-

S 321 Voluntary causing hurt : Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said "voluntarily to cause hurt".

PURSHOTTAM S 319 Hurt: Whoever causes bodily pain, disease or infirmity to PATHAK any person is said to cause hurt.

13. To apply the provision under Section 323/354/34 Digitally signed by PURSHOTTAM IPC, the prosecution has to establish that during the course PATHAK Date: 2024.05.17 of commission of offence, the offender has assaulted/ 17:27:31 +0530 CA NO. 291 of 2019 Jogender Vs. State Page no. 6 of 10 outraged the modesty and caused simple hurt to the complainant.

14. The record shows that the allegations are supported by the testimony of the victim. She has categorically stated in her deposition that on 24.05.2014, while she was going to buy recharge coupon from a shop near her house, she was stopped by the accused Devender (deceased) and accused Jogender and the accused Jogender caught hold of her breast and also touched her body parts. She identified the accused as the offender. She was cross examined at length. Nothing could be elicited which could cast doubt on the correctness of her testimony. Making of PCR call, lodging of DD entry on the same day and the statement under Section 164 Cr.P.C. which has been admitted under Section 294 Cr.P.C., further corroborates the stand of the victim. All the ingredients of Section 354 IPC are satisfied. Hence, I do not find any reason to take a view different from what Trial Court has taken.

15. Another plea taken by appellant is that the MLC of the victim does not support her version, that she was beaten by appellant and received injuries on her right forearm, at her cheek, lips, back and on her hand. The victim has specifically stated in her examination in chief that she was beaten by the accused. Further in her cross PURSHOTTAM PATHAK examination also she stated that she was beaten mercilessly and received injuries on her right forearm, at Digitally signed by PURSHOTTAM PATHAK her cheek, lips, back and on her head. MLC Ex. PW-4/A Date: 2024.05.17 17:27:36 +0530 also corroborates this fact, wherein the injuries suffered CA NO. 291 of 2019 Jogender Vs. State Page no. 7 of 10 has been mentioned as 'nail mark over right forearm, nail mark mild Oedema just above upper-lip tenderness over back of neck'. This court is not convinced with this argument of Ld. Counsel as beating a person itself is sufficient to make out a case for the offence under Section 323 IPC and no needful proof is required. Perusing the evidence adduced on record, I have no hesitation in holding that the complainant has sustained simple injuries.

16. I am also in agreement with the Trial Court that non- investigation with regard to public witnesses cannot go to the root of the matter and benefit of defect in investigation cannot be given to the accused. It is common to find that public persons do not wish to drag into any controversy. There is general reluctance to be cited as witness and people do not wish to be summoned by court and to render their testimony before a court of law. Owing to the fear of courts and a misconception that the witnesses would be subjected to harassment, people do not wish to come forward to narrate their version even though they may have witnessed the incident. Merely because the said persons do not come forward does not imply that version of the victim should be ignored or deprived of due credit. In the case of Appa Bhai Vs. State of Gujrat AIR 1988 SC 696, it has been held as under:-

PURSHOTTAM PATHAK "It is no doubt true that the prosecution has not been able to produce any independent witness to the murder that took place at the Digitally signed by bus stand. There must have been several such witnesses. But the PURSHOTTAM PATHAK prosecution case cannot be thrown out or doubted on that ground Date: 2024.05.17 alone. Civilized people are generally insensitive when a crime is 17:27:42 +0530 committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the court CA NO. 291 of 2019 Jogender Vs. State Page no. 8 of 10 unless it is inevitable. They think that crime like civil disputes are between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore that this handicapped with which the investigating agencies have to discharge its duties. The court therefore, instead of doubting the prosecution case for want of independent witness must consider the spectrum or the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused."

17. So far as minor discrepancy in the version of PW-1 is concerned, none of the contradictions as pointed out by the Ld. Counsel for appellant during the course of arguments, is of such nature so as to go into the root of the matter. The said minor contradictions does not corrode the credibility of the victim, therefore, the same cannot be dubbed as contradictions so as to brush aside the case of prosecution unworthy of credence. Hon'ble Apex Court in State of Rajasthan Vs. Smt. Kalki and Anr. (1981) 2 SCC 752 (FB) observed as under:-

"In the deposition of witnesses there are always normal discrepancies, however honest and truthful they may be. Those discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental deposition such as shock and horror at the time of occurrence and the like. Material discrepancies are those which are not normal and not expected from a normal person. "

18. Ld. Counsel for the appellant has failed to point out any material contradiction in the testimony of PW-1, so as to render the same unreliable. In the present case, the PURSHOTTAM PATHAK testimony of victim is cogent and convincing.

by PURSHOTTAM 19. Keeping in view the facts and circumstance proved PATHAK Date: 2024.05.17 by the prosecution during trial, I am of the considered view 17:27:47 +0530 that appellant/ convict is liable to be convicted for the CA NO. 291 of 2019 Jogender Vs. State Page no. 9 of 10 offence punishable under Section 323/354 IPC and he have been rightly convicted by Ld. Trial Court under these provisions of law. The reasoning given by Ld. Trial Court while convicting the appellant for said offence is just and proper and I find no reason for setting aside the same. Hence, conviction of appellant for offence punishable under Section 323/354 IPC is hereby upheld.

20. Order on sentence shall be passed after compliance in terms of judgment of Hon'ble High Court of Delhi titled as "Karan Vs. State of NCT of Delhi" Crl. Appeal 352/2020.

21. The matter be adjourned for arguments on sentence.

22. A copy of this judgment be supplied to Ld. counsel forthwith. PURSHOTTAM Digitally signed by PURSHOTTAM PATHAK PATHAK Date: 2024.05.17 17:27:53 +0530 ANNOUNCED IN THE OPEN COURT (PURSHOTAM PATHAK) TODAY ON THIS ASJ-05(SOUTH) 17th DAY OF MAY, 2024 SAKET COURTS: N.D (This judgment contains total 10 signed pages) CA NO. 291 of 2019 Jogender Vs. State Page no. 10 of 10