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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 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.

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 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 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.

(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 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.

(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 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;