Delhi District Court
State (Govt. Nct Of Delhi) vs Sunil Kumar Atreya on 25 September, 2018
IN THE COURT OF SHRI SANJEEV KUMAR-II,
ADDITIONAL SESSION JUDGE-05, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
IN THE MATTER OF:
CRIMINAL REVISION NO.204519/2016
State (Govt. NCT of Delhi)
Through Public Prosecutor Delhi ........Revisionist
VERSUS
Sunil Kumar Atreya
S/o Sh. K.C. Sharma
R/o H. No.52, South Extn-I, New Delhi .......Respondent
AND
CRIMINAL REVISION NO.204211/2016
Sonali Jha
H-52, South Ex Part-I, New Delhi ........Revisionist
VERSUS
1. State
2. Sunil Kumar Atreya
H-52, South Ex Part-I, New Delhi .......Respondents
Digitally
signed by
SANJEEV
SANJEEV KUMAR
KUMAR Date:
2018.09.25
Date of institution : 05.02.2016/06.01.2016
16:55:43
+0530 Date of arguments : 01.06.2018
Date of order : 25.09.2018
CR No.204519/2016 State v. Sunil Kumar Atreya
And
CR No.204211/2016 Sonali Jha v. State & Anr. Page No. 1 of 32
JUDGMENT
By way of this judgment, I shall decide abovesaid two criminal revisions because same have been filed against one and same impugned order. One revision has been filed by the State and another one has been filed by the complainant Sonali Jha. Both criminal revisions have been filed by the respective revisionist under Section 397/399 of the Code of Criminal Procedure, 1973 (in short 'Code') for setting aside order dated 05.12.2015 passed by the learned Metropolitan Magistrate-07, South East District, Saket Courts, New Delhi in the FIR No. 174/2013, Police Station Kotla Mubarak Pur under Section 506 and 509 of Indian Penal Code (in short 'IPC') titled as 'State v. Sunil Kumar Atreya' whereby respondent Sunil Kumar Atreya was discharged.
2. Additional Public Prosecutor appearing for the revisionist- State in Criminal Revision No. 204519/2016 has submitted that in statement under Section 164 of the Code of the complainant, the words/filthy languages used by the respondent are mentioned. Continuous complaints were filed by the complainant against the respondent. Learned Metropolitan Magistrate had ignored the statement of complainant under Section 164 of the Code and had wrongly discharged the respondent for the offences under Sections 506 and 509 IPC.
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3. Learned counsel appearing for the revisionist in Criminal Revision No. 204211/2016 has submitted that under Section 401 (2) of the Code, no adverse order to the prejudice of the other party can be passed without being given opportunity to him. At the stage of framing of charge, only prima facie case has to be seen. Complaint has made allegations in her statement under Section 164 of the Code in respect of offence under Section 354 of IPC. Section 509 of IPC is very wide and every gesture or word are covered within the purview of that offence. New amendment in Section 354 IPC would be applicable and offence under Section 354A (i) & (iv) IPC are attracted in the present case. Not only the offence under Section 509 IPC but offence under Section 354A (i) & (iv) IPC would attract against the accused.
4. Learned counsel for the said revisionist has further submitted that Section 506 IPC is applicable not only in respect of complainant, his reputation or property but in respect of other person or reputation in whom the complainant is interested. Even an omission is covered under Section 506 IPC. The criminal threat is concerned to the body of the Ms. Sonali Jha, her reputation and property. She was stopped by the accused to install the camera. Offence of criminal mischief under Section 427 of IPC is also made out because lock and CCTV camera were broken by the accused and for this fact trial is required.
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5. Learned counsel has further submitted that there is no inherent power under Section 482 of the Code to the learned Metropolitan Magistrate. Without trial / evidence, final judgment has been passed by the Learned Metropolitan Magistrate by impugned order. At the stage of charge, no probative value can be looked into. Application under Section 91 of the Code filed by the accused Sunil Kumar Atreya was allowed and documents of accused but taken into consideration by the learned Metropolitan Magistrate. There is one thing to take on record the documents of the accused but there is another thing to consider the said documents at the stage of charge. The complainant had filed earlier complaints also but same were not taken into consideration and only case of defence was seen at the stage of charge by the learned Metropolitan Magistrate. In all the complaints there are no material contradictions. No particular words for the offence under section 506 IPC as well as section 509 IPC are required. If investigative officer had not collected the case property then statement of complainant cannot be stated to be false. Previous complaints, FIR and statement under section 164 of the Code are to be considered altogether. Offences punishable under section 354A,506,509,268/290 IPC are made out against the accused Sunil Atreya and therefore the impugned order may be set aside and charges for the said offences may be directed to be framed by the learned Metropolitan Magistrate. Learned counsel has placed reliance upon decisions i.e. "Sheoraj Singh Ahlawat Vs. State of U.P. (2013) 11 SSC CR No.204519/2016 State v. Sunil Kumar Atreya And CR No.204211/2016 Sonali Jha v. State & Anr. Page No. 4 of 32 476; Onkar Nath Mishra Vs. State (NCT of Delhi) (2008) 2 SCC 561; State of Maharashtra Vs. Som Nath Thapa 1996 Cri. LJ 2448; State of M.P. v. Mohanlal Soni 2000 Cri. LJ 3504; State of Delhi v. Gyan Devi and Others [(2000) 8 SSC 239]; State of Bihar v. Ramesh Singh [(1997) 4 SCC 39]; Superintendent and Remembrancer of legal Affairs, West Bengal v. Anil Kumar Bhunja and Others [(1980) 1 SCR 323]; Sajjan Kumar vs. Central Bureau of Investigation; State of Orissa v. Debendra Nath Pandhi (2005) 1 SCC 568; State Anti- Corruption Bureau, Hyderabad and Another v. P. Suryaprakasam [1999 SCC (Crl.) 373].
6. The respondent himself has argued in both the revision because he himself is an advocate. The respondent has submitted that the revisional power of court is not to be equated with that of an appeal. Unless finding of the court, whose decision is sought to be revised, is showed to be perverse or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where judicial discretion is exercised arbitrarily, courts may not interfere with decision in exercise of their revisional jurisdiction. In case which is proceeded on a police report, a private party has no locus standi to invoke revisional jurisdiction particularly when state has preferred revision, thereby safeguarding the interest of the informants. The learned trial court largely relied on the documents filed by the prosecution and he did not CR No.204519/2016 State v. Sunil Kumar Atreya And CR No.204211/2016 Sonali Jha v. State & Anr. Page No. 5 of 32 relied upon the documents produced by the respondent/accused though the said documents clearly prove the motive of the complainant to falsely implicate the respondent to wreck vengeance. The learned trial court called for the records under Section 91 of the Code which was not only within the knowledge of the investigating officer Sub- Inspector Parmita but all the complaints were marked to her when the respondent made complaints to the Commissioner of Police/Joint- Commissioner (Vig.). The Investigating Officer deliberately left the documents favoring the accused. Prosecution is not entitled to withhold the documents as per its discretion. The Investigating Officer has to place entire evidence before the court. Even at the time of framing of charge, the court has to consider the entire evidence collected by the Investigating Officer or deliberately left out by him.
7. The respondent has further submitted that no allegations against him within the definition of Section 509 and 506 IPC were made in the first complaint made by the complainant. The complaint was lodged when in response to the complaint made by the respondent herein against the servant and the complainant and thereafter servant of the complainant was booked by the local police Under Section 107/115 of the Code and was sent to Jail. Even in second complaint made by the complainant Sonali Jha, there were no allegations within the definition of Section 509 & 506 IPC. Rather, this document / complaint seems to be a fabricated document. FIR was registered on CR No.204519/2016 State v. Sunil Kumar Atreya And CR No.204211/2016 Sonali Jha v. State & Anr. Page No. 6 of 32 the basis of the third complaint and there are several improvements in the third complaint as compared to earlier complaints. The said third complaint is ante-dated which is evident from the copy filed in Bar Council of India and with charge-sheet. Third complaint was lodged by complainant Sonali Jha after MCD issued show cause notice to the husband of the complainant about unauthorized construction for removing the same. It was because of the notice issued by the MCD on the complaint of accused / respondent that the complainant deliberately and falsely implicated the accused.
8. He has further submitted that complainant had made complaint to police against his daughter but no words were attributed to him. In supplementary statement of the complainant also, words attributed to the accused did not find mention. There is no corroboration from any independent witness from neighbourhood. Even the tenant of the complainant, who was forced to prematurely leave the basement for illegal use, did not support the complainant. Statement of the complainant under Section 164 of the Code is totally at variance with earlier complaints.
9. He has further submitted that the allegations of the abusing and threatening are vague and it has not been stated what abuses were given and how the complainant was threatened. In none of the complaints and / or statements, the complainant gave any specific CR No.204519/2016 State v. Sunil Kumar Atreya And CR No.204211/2016 Sonali Jha v. State & Anr. Page No. 7 of 32 date, time, month and year. There are substantial improvements in the statements of the complainant. A complaint on the basis of which the complainant seeks registration of an FIR, must disclose essential ingredients of the offence and in case a complaint lacks or is wanting in any essential ingredients, the lacunae or deficiency cannot be filled by obtaining additional complaints or supplementary statement.
10. He has further submitted that the complainant has alleged that she made complaints to his wife about his conduct but surprisingly she did not utter the same to her husband and neither the husband spoke to him nor any complaint / statement was given by the husband of the complainant and therefore this conduct is unusual. The complaint is vitiated by mala-fide, unnatural and unusual conduct. Complainant and Investigating Officer had implicated him deliberately and falsely because he objected unauthorized construction in stilt parking and renting out basement for running illegally the dancing school and he did not allow her to abstract the electricity from the common area to her floor and further he objected to the PG being run from first floor owned by the complainant / her husband. Complaint was made by him against complainant and her husband against the said activity as well as that for falsely implicating for outraging the modesty of woman. He lodged various complaint against the complainant and her servant and others.
11. He has further submitted that allegations against him are CR No.204519/2016 State v. Sunil Kumar Atreya And CR No.204211/2016 Sonali Jha v. State & Anr. Page No. 8 of 32 highly improbable. The prosecution is not entitled to withhold the documents collected during investigation / or came in possession of documents which is in support of the accused. It is not the duty of the Investigating Officer to strengthen the case by withholding the evidence collected by him. The documents filed by the accused can be looked into at the time of charge. There is no absolute proposition that under no circumstances, the Court can look into the material produced by the defence at the time of framing of charge. He has relied upon the decisions namely Sanjaysinh Ramarao Chavan v. Dattatray Gulbrao Phalke (2015) 3 SCC; Thakur Ram v. State of Bihar, 1966 CRIJ 700; M/s Kerala Transport Co v. D.S. Soma Shekar, 1982 Crlj 1065; PV Narasimha Rao v. State, 1997 (42) DRJ 78; UOI v. Prafulla Kumar Samal, (1979) 3 SCC 4; Dilawar Balu Kurane v. State of Mah., (2002) 2 SCC 135; Sarbans Singh v. State, (2005) 116 DLT 698; State v. A. Arun Kumar, (2015) 2 SCC 417; Yogesh @ Sachin v. State of Mah. (2008) 10 SCC 394; P. Vijayan v. State of Kerala, (2010) 2 SCC 398; Sanjeev v. State, Cr. Rev. Petition 593/2016 dated 24.03.2017; A.K. Ganju v. CBI 2014, (8) RCR (Cr.) 356; Rekha Nambiar Bhojraj Teli v. CBI, 2017 (27) RCR (Cr)129; Ashok Nayyar v. State, 2007 SCC OnLine Del 676; Preetam Singh v. State of UP 2000 (2) RCR; Shakuntala v. State (2007)139 DLT 178; Neelesh Jain v. State of Rajasthan 2006 Cr.L.J. 2151; Rukmini Navrekar v. Vijay Satardekar; Kavita v. State 2016 (4) JCC 2201; M.L. Meena v. State (CBI) 2015 RCR (Cr.) 11; Petter A. Thorose v. State (CBI) 2013 RCR (Cr.); Dr. CR No.204519/2016 State v. Sunil Kumar Atreya And CR No.204211/2016 Sonali Jha v. State & Anr. Page No. 9 of 32 Carla Gulomar Souza v. State of Goa 2014 SCC; Gajanan Padmanabiah v. State of Goa 2010 SCC; Rakesh Kumar Gaur v. State (CrMC 4083/2011) & S.K. Sharma v. State (CrMC 2821/2016); Deepa Bajwa v. State 2004 (77) DRJ 725; Puneet Kumar v. Vandana & Ors. 2009 (161) DLT 758; Manoj Bajpai v. State of Delhi 2015 SCC Online Del 9751; State of Bihar v. Tabarak Hussain 1983 Crl.L.J. NOC 192; Kehar Singh v. State (1988) 3 SCC 609; Prashant Bharati v. State of NCT (2013) 9SCC 293; Aarti Hejmadi v. State 1998 (47) DRJ 812; Harvinder Singh v. State 2015 Legal Eagle (Del) 175; L. Krishna Reddy v. State (SC) Cr. Appeal No. 1833 of 2013; Kanshi Ram v. State 2000 (86) DLT 609.
12. FIR for the offence punishable under Section 509 IPC was registered on 07.07.2013 on the written information/complaint dated 05.07.2013 filed before Assistant Commissioner of Police, Defence Colony, New Delhi by the informant/complainant against the respondent Sunil Kumar Atreya. During investigation, statement of complainant/informant was recorded under Section 164 of the Code. After conclusion of the investigation, police report/charge sheet under Section 173 of the Code for the offences punishable under Sections 506 and 509 IPC was filed against the respondent Sunil Kumar Atreya. Cognizance of the offences were taken by the learned Metropolitan Magistrate on 16.04.2014. An application under Section 91 of the Code filed by the respondent Sunil Kumar Atreya was CR No.204519/2016 State v. Sunil Kumar Atreya And CR No.204211/2016 Sonali Jha v. State & Anr. Page No. 10 of 32 allowed by learned Metropolitan Magistrate on 30.03.2015. By impugned order dated 15.12.2015, order on charge was passed and the respondent Sunil Kumar Atreya was discharged. Hence, present revisions.
13. The FIR was registered on the written information/ complaint dated 05.07.2013 filed by the complainant/informant wherein it is alleged that she alongwith her three children was staying at H-52, NDSE-I (UGF) for over two years as her husband bought the said property for his children for staying and studying there. She stayed there on and off to care for them. She had her staff to look after her children in her absence. A lawyer named Sunil Kumar Atreya had shifted in the third floor of the same building and ever since one year he had been mentally torturing her and he had started verbally harassing her beyond limits. He used filthy language every time and he bangs his main door in an attempt to terrorize her and her children. He was constantly attempting to spoil the good name she have in the neighbourhood by spreading rumours of all kinds. He was attempting to black list her character as well. He was aware that her husband does not come with her every time and she come to see her children. As they have their hospital in Satna, M.P and he is too busy to come every time, this man created a problem. In the past one year, he had broken his lock in the service lane and torn her husband name plates and insulted him verbally by stamping and spiting on his name. He CR No.204519/2016 State v. Sunil Kumar Atreya And CR No.204211/2016 Sonali Jha v. State & Anr. Page No. 11 of 32 had broken common lights switches in the common passage and he put false allegations on his servant and had put him in jail for one day. He had only sent a friend request but he alleged him on charge of violence. He had threatened to beat him if he does not leave and go away. He had not allowed her to put CCTV and threatened to break the cameras. He is a constant threat to her and her children.
14. Prior to above-said complaint, complainant had also filed two complaints, first dated 21.06.2013 and second dated 01.07.2013. After registration of the FIR, statement of complainant was recorded under Section 164 of the Code by the learned Metropolitan Magistrate wherein she inter-alia stated that Mr. Atreya also shifted in the premises in the first floor and every morning since he shifted, he started taking the stairs to come down in the morning and when so coming down, he used to talk to her regularly; that then his normal talks changed and he used to comment on her physical appearance etc and she tried to avoid him, however, whenever he would meet her in the staircase, he would try to touch her physically; that then she told his wife about one year ago that he used to talk to her in an obscene manner but his wife did not believe her; that since that day he started shouting her; since last year whenever he saw her, he used to abuse her and he used words like "slut" "randi", "chutiya", "pimp" towards her, then he called the police at 100 number and police came at the spot; that he used to even threaten to kill her servant and he wanted to CR No.204519/2016 State v. Sunil Kumar Atreya And CR No.204211/2016 Sonali Jha v. State & Anr. Page No. 12 of 32 falsely implicate him (servant) and due to his attitude, he even made her tenant leave the premises; he is scaring her as whenever he sees her, he abuses her; that she feels very unsafe in her house; that he had even removed her husband's name plate from the door; that he beats her door regularly at odd hours; that he is scared of him.
15. It is well settled that at the stage of framing of charge, court has to see prima facie case. In State of Bihar v. Ramesh Singh [(1977) 4 SCC 39] considering the scope of Sections 227 and 228 of the Code of Criminal Procedure, it was held by the Hon'ble Supreme Court that at the stage of framing of charge it is not obligatory for the Judge to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. At that stage, the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion, at the initial stage of framing of charge, is sufficient to frame the charge and in that event it is not open to say that there is no sufficient ground for proceedings against the accused.
16. In State of Delhi v. Gyan Devi & Others [(2008) SCC 239], Hon'ble Supreme Court reiterated that at the stage of framing of charge the Trial Court is not to examine and access in detail the materials placed on record by the prosecution nor is it for the court to CR No.204519/2016 State v. Sunil Kumar Atreya And CR No.204211/2016 Sonali Jha v. State & Anr. Page No. 13 of 32 consider the sufficiency of the materials to establish the offence alleged against the accused persons.
17. In State of Orissa v. Debendra Nath Padhi [Appeal (crl.) 497 of 2001 decided on 29.11.2014], Hon'ble three Judge Bench of Supreme Court held that all the decisions, when they hold that there can only be limited evaluation of materials and documents on record and shifting of evidence to prima facie find out whether sufficient ground exists or not for the purpose of proceeding further with the trial, have so held with reference to materials and documents produced by the prosecution and not the accused.
18. Hon'ble three-Judge Bench of the Supreme Court in Sonu Gupta v. Deepak Gupta & Ors. [Criminal Appeal Nos. 285-287 of 2015 decided on 11.02.2015] held that even at the stage of framing of charge, the sufficiency of materials for the purpose of conviction is not the requirement and a prayer for discharge can be allowed only if the court finds that the materials are wholly insufficient for the purpose of trial. It is also a settled proposition of law that even where there are materials raising strong suspicion against an accused, the court will be justified in rejecting a prayer for discharge and in granting an opportunity to the prosecution to bring on record the entire evidence in accordance with law so that case of both the sides may be considered appropriately on conclusion of trial.
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19. FIR was registered on the basis of complaint /information dated 05.07.2013. In said complaint, complainant/informant has stated that respondent Sunil Kumar Atreya has shifted in the third floor of the same building and ever since one year, he has been mentally torturing her and he has started verbally harassing her beyond limits. She has also stated in said statement that he used filthy language every time. In statement under section 164 of the Code, complainant has stated that Sunil Kumar Atreya used to comment on her physical appearance etc and whenever he would meet her in the staircase, he would try to touch her physically. It is also stated in said statement that since last year whenever he saw her, he used to abuse her and he used to words like slut, randi, chutiya and pimp towards her. It is correct that the specific words like slut, randi, chutiya and pimp were not used by the complainant in the earlier complaints filed by her. It is also correct that in earlier complaints, complainant has not mentioned that he used to comment on her physical appearance etc and whenever he would meet her in the staircase, he would try to touch her physically. But it does not mean that said statement under section 164 of the Code cannot be relied upon at the initial stage of framing of charge.
20. Recently on 04.07.2018, in Prabhu Dayal v. State of Rajasthan, Criminal Appeal No.2324 of 2014, Hon'ble Supreme Court CR No.204519/2016 State v. Sunil Kumar Atreya And CR No.204211/2016 Sonali Jha v. State & Anr. Page No. 15 of 32 has observed:-
"9. It is settled law that the FIR need not contain an exhaustive account of the incident. This Court in Om Prakash v. State of Uttaranchal, (2003) 1 SCC 648, observed as follows:
"10. ...It is axiomatic that the FIR need not contain an exhaustive account of the incident. It is to be noted that the report was given to the police within one-and-a-half hours after the incident. PW 8, a known person, had drafted the report that she dictated. She had given all essential and relevant details of the incident naming the accused as culprit. We cannot expect a person injured and overtaken by grief to give better particulars. The possibility of PW 1inventing a story at that juncture trying to implicate the accused is absolutely ruled out. The contents of the FIR, broadly and in material particulars, conform to the version given by PW 1 in her deposition...".
A FIR is not an encyclopaedia of the case. This Court in Surjit Singh v. State of Punjab, 1993 Supp (1) SCC 208, CR No.204519/2016 State v. Sunil Kumar Atreya And CR No.204211/2016 Sonali Jha v. State & Anr. Page No. 16 of 32 observed as follows:
"8. ...In this situation the aforesaid misdescriptions/omissions in the FIR about the number of shots fired and the absence of Taljit Singh's injuries or the appellant being not described as a military man become of lesser importance. First Information Report is not an encyclopaedia of the entire case and is even not a substantive piece of evidence. It has value, no doubt, but only for the purpose of corroborating or contradicting the maker. Here the maker was a young woman who had lost her husband before her very eyes. The omission or misdescription of these details in the FIR which was recorded most promptly, within three hours of the occurrence, would not tell on the prosecution case or the statements of the eyewitnesses with regard to the participation of the appellant in the crime. He had taken a leading and prominent part in spearheading and committing it. For these reasons, we are of the view that the High Court was right in convicting the appellant on giving cogent reasons to demolish CR No.204519/2016 State v. Sunil Kumar Atreya And CR No.204211/2016 Sonali Jha v. State & Anr. Page No. 17 of 32 the reasoning of the Trial Judge and adding thereto reasons of its own."
(emphasis supplied) A witness' testimony need not be disbelieved only because it did not find mention in the FIR. In State of M.P. v. Dhirendra Kumar, (1997) 1 SCC 93, this Court discussed and applied the principle as follows:
"11. It was very emphatically contended by Shri Gambhir that as in the first information report (FIR) there is no mention about the dying declaration, we should discard the evidence of PW1 and PW2 regarding dying declaration, because of what has been pointed out by this Court in Ram Kumar Pandey v. State of M.P. [(1975) 3 SCC 815 : 1975 SCC (Cri) 225 : AIR 1975 SC 1026] We do not, however, agree with Shri Gambhir, for the reason that what was observed in Ram Kumar case [(1975) 3 SCC 815 :
1975 SCC (Cri) 225 : AIR 1975 SC 1026] after noting the broad facts, was that material omission in the FIR would cast doubt on the veracity of the prosecution case, despite the general law being CR No.204519/2016 State v. Sunil Kumar Atreya And CR No.204211/2016 Sonali Jha v. State & Anr. Page No. 18 of 32 that statements made in the FIR can be used to corroborate or contradict its maker. This view owes its origin to the thinking that if there be material departure in the prosecution case as unfolded in the FIR, which would be so if material facts not mentioned in the FIR are deposed to by prosecution witnesses in the court, the same would cause dent to the edifice on which the prosecution case is built, as the substratum of the prosecution case then gets altered. It is apparent that prosecution cannot project two entirely different versions of a case. This is entirely different from thinking that some omission in the FIR would require disbelieving of the witnesses who depose about the fact not mentioned in the FIR. Evidence of witnesses has to be tested on its own strength or weakness. While doing so, if the fact deposed be a material part of prosecution case, about which, however, no mention was made in the FIR, the same would be borne in mind while deciding about the credibility of the evidence given by the witness in question."
(emphasis supplied) CR No.204519/2016 State v. Sunil Kumar Atreya And CR No.204211/2016 Sonali Jha v. State & Anr. Page No. 19 of 32 Recently, in Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1, this Court observed as follows:
"57. As far as the argument that the FIR does not contain the names of all the accused persons is concerned, it has to be kept in mind that it is settled law that FIR is not an encyclopaedia of facts and it is not expected from a victim to give details of the incident either in the FIR or in the brief history given to the doctors. FIR is not an encyclopaedia which is expected to contain all the details of the prosecution case; it may be sufficient if the broad facts of the prosecution case alone appear. If any overt act is attributed to a particular accused among the assailants, it must be given greater assurance. In this context, reference to certain authorities would be fruitful."
10. It is a common phenomenon that the witnesses are rustic and can develop a tendency to exaggerate. This, however, does not mean that the entire testimony of such witnesses is falsehood. Minor contradictions in the testimony of the witnesses are not fatal to the case of the prosecution. This Court, in State CR No.204519/2016 State v. Sunil Kumar Atreya And CR No.204211/2016 Sonali Jha v. State & Anr. Page No. 20 of 32 of U.P. v. M.K. Anthony, (1985) 1 SCC 505, held that inconsistencies and discrepancies alone do not merit the rejection of the evidence as a whole. It stated as follows:
"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 CR No.204519/2016 State v. Sunil Kumar Atreya And CR No.204211/2016 Sonali Jha v. State & Anr. Page No. 21 of 32 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. Cross-examination is an unequal duel between a rustic and refined lawyer. Having examined the evidence of this witness, a friend and well- wisher of the family carefully giving due weight to the comments made by the learned counsel for the respondent and the reasons assigned to by the High Court for rejecting his evidence simultaneously keeping in view the appreciation of the evidence of this witness by the trial court, we have no hesitation in holding that the High Court was in error in rejecting the testimony CR No.204519/2016 State v. Sunil Kumar Atreya And CR No.204211/2016 Sonali Jha v. State & Anr. Page No. 22 of 32 of witness Nair whose evidence appears to us trustworthy and credible."
(emphasis supplied) In State of U.P. v. Anil Singh, 1988 Supp SCC 686, this Court observed that:
"17. ...invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses."
The Court can separate the truth from the false statements in the witnesses' testimony. In Leela Ram v. State of Haryana, (1999) 9 SCC 525, this Court held as follows:
"12. It is indeed necessary to note that one hardly comes across a witness whose evidence does not CR No.204519/2016 State v. Sunil Kumar Atreya And CR No.204211/2016 Sonali Jha v. State & Anr. Page No. 23 of 32 contain some exaggeration or embellishment- sometimes there could even be a deliberate attempt to offer embellishment and sometimes in their overanxiety they may give a slightly exaggerated account. The court can sift the chaff from the grain and find out the truth from the testimony of the witnesses. Total repulsion of the evidence is unnecessary. The evidence is to be considered from the point of view of trustworthiness. If this element is satisfied, it ought to inspire confidence in the mind of the court to accept the stated evidence though not however in the absence of the same."
Moreover, it is not necessary that the entire testimony of a witness be disregarded because one portion of such testimony is false. This Court observed thus in Gangadhar Behera v. State of Orissa, (2002) 8 SCC 381:
"15. To the same effect is the decision in State of Punjab v. Jagir Singh [(1974) 3 SCC 277 : 1973 SCC (Cri) 886 : AIR 1973 SC 2407] and Lehna v. State of Haryana [(2002) 3 SCC 76 : 2002 SCC (Cri) 526]. Stress was laid by the accused-
CR No.204519/2016 State v. Sunil Kumar Atreya And CR No.204211/2016 Sonali Jha v. State & Anr. Page No. 24 of 32 appellants on the non-acceptance of evidence tendered by some witnesses to contend about desirability to throw out the entire prosecution case. In essence prayer is to apply the principle of "falsus in uno, falsus in omnibus" (false in one thing, false in everything). This plea is clearly untenable. Even if a major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of a number of other co-
accused persons, his conviction can be maintained. It is the duty of the court to separate the grain from the chaff. Where chaff can be separated from the grain, it would be open to the court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of a particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno, falsus in omnibus" has no application in India and the witnesses cannot be branded as liars. The maxim "falsus in uno, falsus in omnibus" has not received general acceptance nor has this maxim CR No.204519/2016 State v. Sunil Kumar Atreya And CR No.204211/2016 Sonali Jha v. State & Anr. Page No. 25 of 32 come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded."
21. In Hardei v. State of U.P., Criminal Appeal No. 186 of 2016 decided on 30.05.2016 and Amar Nath Jha v. Nand Kishore Singh & etc, Criminal Appeal No. 94-97 of 2013 decided on 03.08.2018, Hon'ble Supreme Court held that FIR is not encyclopaedia.
22. In Sheikh Juman & Anr. Etc v. State of Bihar, Criminal Appeal No. 484-487 of 2018 decided on 23.02.2017, Hon'ble Supreme Court held:-
"14. Mr. Huzefa Ahmadi, learned senior counsel for appellants contented that both the Courts below have committed an error in convicting the appellants for the offence punishable under Section 302 IPC, along-with other accused. He submitted that there were material improvements made by PW14 in his deposition when compared to the fardbeyan given to the police on the date of the incident and no specific role has been attributed to the present appellants. But after CR No.204519/2016 State v. Sunil Kumar Atreya And CR No.204211/2016 Sonali Jha v. State & Anr. Page No. 26 of 32 careful analysis of the fardbeyan (Ext.7), we have an entirely different opinion. It is true that deposition is somewhere literally larger than the fardbeyan, however, it is no where contrary to it. It may rightly be said that the deposition of PW14 is merely elaborated form of statement recorded before the police, with minor contradictions. Oral evidence of a witness could be looked with suspicion only if it contradicts the previous statement."
23. In Sandeep Sunil Kumar Loharia v. Sumeet Ganpatrao Bachewar and Anr. (Criminal Appeal No. 1051 of 2018) decided recently on 23.08.2018 by Hon'ble Supreme Court, two sets of evidence have been received by the prosecution on the basis of the statement recorded under Section 161 of the Code . The first is the statement made by the deceased to the person who drop the auto- rickshaw and took the deceased to the hospital and an employee of the deceased who also accompanied the deceased to the hospital. In the statement made before the aforesaid two persons by the deceased, the names of two accused persons had been mentioned. But according to the son, he had arrived at the hospital and the deceased (his father) had stated before him that he was attacked and injured apart from abovesaid two accused persons, by three other accused persons.
CR No.204519/2016 State v. Sunil Kumar Atreya And CR No.204211/2016 Sonali Jha v. State & Anr. Page No. 27 of 32 Hon'ble High Court had discharged the said other three accused persons observing that statement made by the son of the deceased appears to be calculated and does not indicate trustworthiness in comparison to the statements made by the person who took him in the auto rickshaw and by the employee. Hon'ble Supreme Court has observed that appreciation of evidence is an exercise that the High Court could not have undertaken at this stage of consideration of the application for discharge, but this is what precisely what High Court appears to have been done. It was also observed by the Hon'ble Supreme Court that while there can be no dispute on the proposition that has been laid in paragraph 16 of Yogesh alias Sachin Jagdish Joshi v. State of Maharashtra (2008) 10 SCC 394 what was happened in the present case is that the statements recorded in the course of investigation had been weighed, analyzed and appreciated. In a situation where the said evidence is yet to be tested by cross- examination and veracity of either of the two versions is yet to be established. It cannot be said that there are two possible views of the matter. Order of High Court was set aside by Hon'ble Supreme Court holding further that the power exercised by the High Court to order for discharge was premature.
24. In Mathura Dass & Ors. v. State, 2003 III AD (DELHI) 213, it was held by Hon'ble Delhi High Court that-:
"After considering the submissions made by learned counsel for the parties and examining the CR No.204519/2016 State v. Sunil Kumar Atreya And CR No.204211/2016 Sonali Jha v. State & Anr. Page No. 28 of 32 material on record, this Court is of the considered view that a Judge, at the time of framing of charge, is not to act merely as a post-office or mouth-piece of the prosecution, but has powers to sift and weigh the evidence but for a limited purpose only. This exercise has to be undertaken by him only with a view to find out as to whether a prima facie case is made out or not. The existence of a prima facie case may be found even on the basis of strong suspicion against an accused. The assessment, evaluation and weighing of the prosecution evidence in a criminal case at the final stage is on entirely different footing than it is at the stage of framing a charge. At the final stage if two views are possible, one of which suggests that the accused may be innocent, then the view favorable to the accused has to be accepted whereas at the stage of framing of the charge, the view which is favorable to the prosecution, has to be accepted for the purpose of framing charge so that in the course of the trial, the prosecution may come out with its explanations in regard to the draw-backs CR No.204519/2016 State v. Sunil Kumar Atreya And CR No.204211/2016 Sonali Jha v. State & Anr. Page No. 29 of 32 and weaknesses, if any, being pointed but by an accused."
25. Hence, from the above decisions, law which are applicable at the stage of framing of charge, are that only prima facie case has to be seen and probative value of the material on record cannot be looked into. The statements recorded in the course of investigation can not be weighed, analyzed and appreciated. At the final stage if two views are possible, one of which suggests that the accused may be innocent, then the view favorable to the accused has to be accepted whereas at the stage of framing of the charge, the view which is favorable to the prosecution, has to be accepted. If deposition is somewhere literally larger than the previous statement/FIR, however, it is no where contrary to it then said deposition can not be discarded merely because of elaborated form of statement recorded before the police, with minor contradictions. Oral evidence of a witness could be looked with suspicion only if it contradicts the previous statement. FIR is not an encyclopaedia of the entire case and is even not a substantive piece of evidence. FIR has value but only for the purpose of corroborating or contradicting the maker.
26. In the complaint/information upon which FIR was registered, it is, inter alia, mentioned that the lawyer named Sunil Atreya has shifted in the third floor in the same building and ever CR No.204519/2016 State v. Sunil Kumar Atreya And CR No.204211/2016 Sonali Jha v. State & Anr. Page No. 30 of 32 since first year, he has been mentally torturing her; that he has started verbally harassing her beyond limits; he used filthy language every time; that he is attempting to black list her character as well. In her statement under Section 164 of the Code, she has specifically alleged that he used to comment on her physical appearance etc. and she tried to avoid him, however, whenever he would meet her in the staircase, he would try to touch her physically; that then she told his wife about one year ago that he used to talk to her in an obscene manner but his wife did not believe her; that since that day he started shouting her; since last year whenever he saw her, he used to abuse her and he used words like "slut" "randi", "chutiya", "pimp" towards her; that he is scaring her as whenever he sees her, he abuses her; that she feels very unsafe in her house; that he had even removed her husband's name plate from the door; that he beats her door regularly at odd hours; that he is scared of him. Hence, in the present case, it is correct that the complainant has given larger or elaborated form of statement during the proceeding under Section 164 of the Code but, she has not given two different contradictory versions in respect of offence under Section 509 IPC. In respect of offence of criminal intimidation under Section 506 IPC is concerned, complainant has stated in FIR that he (accused) had threatened her servant to beat him if he does not leave and go away and further that he has not allowed her to put CCTV and threatened to break the cameras. In statement under Section 164 of the Code, complainant has alleged in this regard that latter on, he used to CR No.204519/2016 State v. Sunil Kumar Atreya And CR No.204211/2016 Sonali Jha v. State & Anr. Page No. 31 of 32 even threaten to kill her servant. Hence, complainant has stated regarding threatening to her servant. But, said servant has not been examined by the Investigating Officer and there is no statement under Section 161 of the Code in chargesheet. In respect of the criminal intimidation/threatening to complainant to break her cameras, same has been stated in the FIR, but nothing has been stated by her in her statement under Section 164 of the Code in this regard. Hence, offence under Section 506 IPC does not appear to have been prima facie attracted.
27. Hence, from the material available on record/ charge-sheet, it can not be said that prosecution has no prima facie case against accused (respondent Sunil Kumar Atreya) for framing of charge under Section 509 IPC and therefore revisions are allowed. Impugned order to the extent of discharging of respondent for the offence under Section 509 IPC is set aside. Learned Trial Court shall frame the charge against accused Sunil Kumar Atreya for the offences under Section 509 IPC. Respondent Sunil Kumar Atreya shall appear before learned Trial Court on 01.10.2018.
Announced in the open Court on 25.09.2018 (Sanjeev Kumar-II) Additional Session Judge-05, South East, Saket Courts, New Delhi CR No.204519/2016 State v. Sunil Kumar Atreya And CR No.204211/2016 Sonali Jha v. State & Anr. Page No. 32 of 32