Delhi District Court
Ajay Bhargava vs The State on 8 January, 2025
IN THE COURT OF SH. ABHISHEK GOYAL, ADDITIONAL
SESSIONS JUDGE-03, CENTRAL DISTRICT, TIS HAZARI
COURTS, DELHI
CNR No.: DLCT01-007894-2019
CRIMINAL APPEAL No.: 282/2019
AJAY BHARGAVA,
1425, Bazar Sita Ram,
Chandni Chowk, Delhi-110006. ... APPELLANT
VERSUS
1. STATE (GOVT. OF NCT OF DELHI)
2. SMT. 'X1',
W/o. Sh. 'B',
R/o. 'ABC'. ... RESPONDENTS
Date of Institution : 07.06.2019
Date when judgment was reserved : 30.11.2024
Date when judgment is pronounced : 08.01.2025
JUDGMENT
1. The present appeal has been filed under Section 374
(3) of the Code of Criminal Procedure, 1973 (hereinafter, referred
to as ‘Cr.P.C.’) against the judgment dated 08.05.2019 (hereinafter
referred to as ‘impugned judgment’), passed by learned
Metropolitan Magistrate-01/Ld. MM-01, Mahila Court, Central,
Tis Hazari Courts, Delhi (hereinafter referred to as the ‘Ld. Trial
Court/Ld. MM’) in case bearing, “State v. Ajay Bhargava, Crl.
Case No. 289386/2016″, arising out of FIR No. 68/2016, PS Hauz
Qazi, under Sections 323/354 of the Indian Penal Code, 1860
(hereinafter referred to as ‘IPC‘), convicting the appellant for the
offences punishable under Section 323/354 IPC and the
consequent order of sentence dated 20.05.2019 (hereinafter
1
Identities of the prosecutrix as well as that of her other family members, who have appeared before the Ld.
Trial Court as PWs have deliberately been withheld in view of the decisions in; 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.
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referred to as ‘impugned order’), passed by the Ld. Trial Court,
awarding the appellant, rigorous imprisonment for a period of 01
(one) year and fine of Rs. 10,000/- (Rupees Ten Thousand only)
and in default of payment of which fine, to undergo simple
imprisonment for a further period of 20 (twenty) days for the
offence under Section 354 IPC, and simple imprisonment for a
period of 06 (six) months and fine of Rs. 1,000/- (Rupees One
Thousand only), in default of payment of which fine to undergo
simple imprisonment for a further period of 05 (five) days for the
offence under Section 323 IPC. Further, the fine amount was
directed to be released/paid to the victim/prosecutrix as
compensation, besides the appellant was directed to benefit under
Section 428 Cr.P.C. (hereinafter impugned judgment and
impugned order are collectively referred to as the ‘impugned
judgment and order’).
2.1. Pithily put, case of the prosecution against the
appellant, premised on the complaint of the
prosecutrix/complainant/respondent no. 2 is that she was working
as domestic help in the house of the appellant for several years. On
14.03.2016, at about 06.00 p.m., as per the prosecutrix,
she/prosecutrix had gone to the appellant’s father’s house at House
No. 1425, Sita Ram Bazar, Delhi-11006 (मैं कल 14/3/16 को विजय भूषण
भार्गव के घर मकान न० 1425 सीता राम बाजार मे दिल्ली-110006 में 6 बजे करीब
घर काम करने गई थी). Further, as per the prosecutrix, while she was
working and had gone inside the house to keep some goods in the
refrigerator and that no one was present in the house, the appellant,
namely, Ajay Bhargava came from behind and held her/the
prosecutrix in his arms and forcefully pressed her breast with his
both hands (जब मैं उनके घर के अन्दर फ् रीज गई उस समय घर मे कोई भी नही
था तो पीछे से मुझे अजय भार्गव ने भुजाओं में भर लिया और मेरी दोनो छाती दबा
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दी). As per the complainant, she fell unconscious due to the said
incident and when she regained her consciousness, she found that
nobody was present in the said house, even then (जिससे मेरी चीख और
मैं घबराकर बहोश हो गई थोड़ी देर बाद मे जब मुझे होश आया तब उस श्री घर में
कोई नही था). Subsequently, the complainant is asserted to have
returned to her home and later on during night, as per the
complainant, she did not inform her family members of the
incident (और मैं अपने घर आ गई. जो मैने यह बात रात को घर मे किसी को नहीं
बताई). Further, as per the complainant, she experienced pain in her
chest during night, consequently, she informed the incident to her
husband, whereupon she reached the police station to have her
complaint registered (जो रात को मेरे सीने मे काफी दर्द हो गया और मैने यह
बात आज कु छ अपने पति को बताई जो मैं अब आज अपने पति के साथ थाने में
आई हैं ।). Consequently, under said facts and circumstances and on
the basis of the prosecutrix’s complaint, the instant FIR was
registered, and investigation ensued. Notably, during the course of
investigation, medical examination of the prosecutrix was got
conducted vide ME/MLC No. EDC011762 dated 15.03.2016 and
the appellant was arrested by the concerned police official(s).
Concomitantly, statement of the prosecutrix was got recorded in
terms of the provisions under Section 164 Cr.P.C. on 16.03.2016,
as well as the statements of other witnesses were recorded by the
concerned IO. Notably, the ME report/MLC of the prosecutrix
inter alia records complaint of chest pain during inspiration as well
as notes, “mild tenderness on sternum…”.
2.2. Consequently, upon conclusion of investigation in the
present case, chargesheet was filed by the concerned IO before the
Ld. Trial Court. Notably, consequent upon Ld. Trial Court’s taking
cognizance of the offence under Sections 323/354 IPC on
05.05.2016, summons were issued to the appellant/accused.
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Subsequently, upon compliance of provisions under Section 207
Cr.P.C. and on the Ld. Counsel for the appellant as well as Ld. APP
for the State addressing arguments on charge, the Ld. Trial Court
vide its order dated 20.03.2017 directed framing of charges against
the appellant. Consequently, the following charges were framed
against the appellant on 20.03.2017;
“…I, ***, M.M. Delhi do hereby charge you
accused Ajay Bhargava, S/o. Sh. Vijay Bhushan
Bhargav, aged about 42 years, R/o. H.No. 1425, Sita
Ram Bazar, Chandni Chowk, Delhi 110006 as under:-
That on 14.03.2016, at about 6.00 pm at H.No.
1425, Sita Ram Bazar, Delhi within the jurisdiction of
PS Hauz Qazi, you accused voluntarily caused simple
injuries to the complainant/prosecutrix (name not
written for the purpose of protecting the identity of the
victim, however, verbally told to the accused) and
used criminal force to her intending to outrage or with
the knowledge that you would thereby are likely to
outrage her modesty and thereby committed an
offence punishable under Section 323 and 354 IPC
and within my cognizance.
And I hereby direct you to be tried for the
aforesaid offences by this court…”
(Emphasis supplied)
2.3. Markedly, the appellant pleaded not guilty to the
aforesaid charges and claimed trial. Correspondingly, on
20.03.2017, the appellant admitted the recording of
prosecutrix’s/complainant’s statement in terms of the provisions
under Section 164 Cr.P.C. (Ex. P-1 (Colly.)), leading to the Ld.
Trial Court’s dispensing with/dropping of the concerned Ld. MM
from the list of prosecution witnesses. Relevantly, during the
course of trial, prosecution examined 07 (seven) witnesses , i.e.,
PW-1/complainant/prosecutrix (‘X’); PW-2/Dr. Shivani Vats;
PW-3/SI Madan Lal, PW-4/ Sh. ‘B’, i.e., the husband of
complainant; PW-5/Ms. ‘R’, i.e., daughter of the complainant;
PW-6/Ct. Narender Kumar; and PW-7/SI Raj Kumar.
Subsequently, on conclusion of prosecution evidence, recording of
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by ABHISHEK
ABHISHEK GOYAL
Date:
GOYAL 2025.01.08
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statement of the appellant under Section 313 Cr.P.C. on
18.02.2019, as well as on conclusion of arguments on behalf of the
parties, as aforementioned, the Ld. Trial Court vide impugned
judgment and order, while holding the appellant guilty of the
offences punishable under Sections 323/354 IPC, sentenced him in
the manner, as noted hereinabove.
3.1. Learned Counsel for the appellant vehemently
contended that the impugned judgment and order were passed by
the Ld. Trial Court on mere conjunctures, surmises and in
contravention of the settled principles of law, deserving their
setting aside at the outset. As per the Ld. Counsel, the impugned
judgment is incorrect both on facts as well as in law, making the
same liable to be set aside at the outset. It was further submitted
that the Ld. Trial Court erred in not appreciating the facts and
circumstances of the present case, nor the submissions of the
appellant. In this regard, Ld. Counsel outrightly submitted that the
Ld. Trial Court failed to appreciate that in the instant case, there are
numerous gaping holes in the case put forth by the
complainant/prosecutrix and her family members, besides the
prosecutrix’s story does not inspire confidence, nor appeals to the
senses of a prudent man. Ld. Counsel further submitted that the Ld.
Trial Court failed to appreciate the fact that the respondent no. 2
was working in the house of appellant for around 18 (eighteen)
years and never once, did any family members of the appellant
acted indecently with her. On the contrary, as per the Ld. Counsel,
the actual facts of the present case are in gross variance to the story
concocted by the complainant in the instant case. In this regard,
Ld. Counsel strenuously contended that the actual facts that
transpired are that respondent no. 2/complainant along with her
family came to work with the father of the appellant around 16-18
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years prior to the alleged date of incident and that ever since the
complainant/prosecutrix and her family were living in the house of
the appellant’s father. Correspondingly, as per the Ld. Counsel, in
lieu of the rent of the premises, the complainant/respondent no. 2
agreed to work in the appellant’s house as a domestic help.
However, as per the Ld. Counsel for the appellant, post demise of
appellant’s mother, the prosecutrix reduced her working hours
with the appellant and in the year, 2016, when the appellant’s
father requested the complainant/respondent no. 2 to vacate the
premises, the complainant and her family hatched a sinister plot
against the appellant and his family. It was further submitted that
the prosecutrix initially asserted that she became owner of the said
premise by virtue of adverse possession and subsequently, in the
month of March 2016, the complainant/respondent no. 2, in
furtherance to her design to grab the premises belonging to the
appellant’s father, falsely and wrongly accused the appellant of
outraging her modesty. Ld. Counsel further submitted that there
are material contradictions in the version of the complainant
including her initial statement given by her to the police; in her
subsequent version narrated to the Doctor as well as in the
prosecutrix’s statement given tendered before the Ld. Trial Court.
It was further reiterated that there are material contradictions in the
statements of the complainant, her husband and her daughter,
however, the Ld. Trial Court wrongly termed such significant
contradictions and variance as ‘mere marginal variations’ and did
not pay heed to such contradictions/improvements, while
convicting the appellant. Ld. Counsel further submitted that the
complaint filed by the complainant/respondent no. 2 was a product
of fraud and counterblast to the repeated requests of the appellant’s
family asking the complainant to vacate the premises, which fact
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was also not considered by the Ld. Trial Court.
3.2. Learned Counsel for the appellant further submitted
that the Ld. Trial Court failed to consider that even according to the
prosecutrix, there were other servants in the home who gave her
water after she allegedly fell down, which is sufficient to presume
that no prudent man, in the presence of other persons in the home
would endeavor to commit the acts, alleged against them. Further,
as per the Ld. Counsel, even the IO did not bother to examine the
other servants, who even as per the versions of the complainant,
helped her and gave her water when she fell. It was further
vehemently asserted that the father of the appellant filed an
eviction suit against the complainant after the initiation of the
proceedings in the present case, which belies the factum of
commission of incident in the present case. Ld. Counsel further
reiterated that there are grave contradictions in the multiple
versions of the complainant as well as other prosecution witnesses,
sufficient to pass an order of acquittal against the appellant in the
present case. Further, as per the Ld. Counsel, the prosecution has
failed to prove its case beyond reasonable doubts in the instant
case, despite which, the said facts were not considered by the Ld.
Trial Court, which passing an order of conviction against the
appellant in the present case. As per the Ld. Counsel, the Ld. Trial
Court has passed the impugned judgment in utmost haste, without
applying judicial mind. It was further contended that the Ld. Trial
Court failed to appreciate that the appellant/accused duly proved
his defence. In this regard, Ld. Counsel further fervently averred
that the Ld. Trial Court failed to consider that the appellant was
falsely implicated in the present case due to ulterior motive and
bald averment of the complainant and her family. Ld. Counsel
further submitted that the Ld. Trial Court failed to appreciate the
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ABHISHEK GOYAL
GOYAL Date:
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fact that there are several factors which indicates that no fair and/or
impartial investigation was conducted by the concerned police
officials in the present case.
3.3. Learned Counsel for the appellant further submitted
that the Ld. Trial Court reached its conclusion of guilt of the
appellant while failing to appreciate that there is no cogent,
credible and reliable evidence on record for reaching an
unambiguous conclusion towards the guilt of the appellant herein.
Accordingly, Ld. Counsel submitted that not only did the Ld. Trial
Court failed to consider the truth of circumstances and passed its
judgment/decision in haste, rather, did not properly
appreciate/examine the facts of the present case, wrongly holding
the appellant guilty of the aforementioned offences. Even
otherwise, it was submitted by the Ld. Counsel for the appellant
that the order of sentence was also passed by the Ld. Trial Court,
whimsically, while failing to appreciate that the appellant is
responsible for the look after and take care of his family members,
besides there are no other cases pending against the appellant and
that he has clean antecedents. Ld. Counsel further vehemently
argued that the punishment/penalty must not be retributive in
nature, rather, humanizing, considering that condemning the
appellant with severe sentence would subject the appellant’s
family members to grave depravity. Further, as per the Ld.
Counsel, substantial time has lapsed since the incident in question
and in case relaxation/leniency is not afforded to the appellant
gross repercussions may ensue to his physical and mental well-
being. Consequently, the Ld. Counsel for the appellant inter alia
prayed that the present appeal be allowed, and the impugned
judgment and order be set aside. In the alternate, Ld. Counsel
submitted that the appellant be permitted/granted the
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GOYAL
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benefit/relaxation in terms of the provisions under the Probation of
Offenders Act, 1958 (hereinafter referred to as the ‘Probation of
Offenders Act‘). In support of the said contentions, reliance was
placed upon the decisions in; Girish Singh v. State of Uttarakhand,
Crl. Appeal No. 1475/2009, dated 23.07.2019 (SC); Suraj Mal v.
State (Delhi Administration), (1979) 4 SCC 725; Kalinga @
Kushal v. State of Karnataka, 2024 SCC Online SC 164; Mallappa
& Ors. v. State of Karnataka, (2024) 3 SCC 544; Sukhar v. State of
UP, (1999) 9 SCC 507; Tilak Raj v. State of HP, (2016) 4 SCC 140;
Dhal Singh Dewangan v. State of Chhattisgarh, (2016) 16 SCC
701; Shivaji Chintappa Patil v. State of Maharashtra, Crl. Appeal
No. 1348 of 2013, dated 02.03.2021 (SC); Ved Pal & Anr. v. State
of Haryana, 2023 SCC Online SC 1611; Sanjeev Kumar v. State
NCT of Delhi, 2023 SCC Online Del. 2646; Mahaveer Prasad v.
State NCT of Delhi, 2024 SCC Online Del. 6855; Ajay Sondhi v.
State of Delhi, 2024 SCC Online Del. 5584; State v. Neeraj, 2023
SCC Online Del. 5262; Shiva @ Chandrika v. State, Crl. A.
1284/2014, dated 01.07.2019 (DHC); Hiralal Kasam Shaikh v.
State of Maharashtra, 2019 (4) Bom.CR (Crl.) 132; Jeewan v.
State (GNCT of Delhi), Crl. Revision No. 796/2015 dated
20.09.2016 (DHC); State v. Devanand & Ors., 2023 SCC Online
Del. 5467; Sanjay v. State, Crl. Appeal No. 1059/2015, dated
28.07.2016 (DHC); Pawan Kumar v. State & Ors., 2020 (205) AIC
547; Haseeb v. State, Crl. Appeal No. 1200/2016, dated
31.10.2019 (DHC); State (Govt. of NCT of Delhi) v. Maqbool
Khan, 2019 (1) JCC 830; State (NCT of Delhi) v. Pinto, 248
(2018) DLT 797; State of NCT of Delhi v. Ram Lakhan,
MANU/DE/1802/2019; Vishnu v. State of UP,
MANU/UP/191/2021; and Harish & Ors. v. The State Govt. of
NCT of Delhi, MANU/DE/1920/2018.
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4.1. Per contra Ld. Addl. PP for the State submitted that
the impugned judgment and order were passed by the Ld. Trial
Court after due appreciation of the facts and circumstances of the
case as well as in consonance with the settled judicial precedents.
Ld. Addl. PP for the State further submitted that the testimony of
the prosecutrix has not only been consistent, rather, of sterling
quality, lucidly pointing out towards the only inference of guilt of
the appellant. Further, as per the Ld. Addl. PP for the State the
appellant has even failed to prove its defence before the Ld. Trial
Court by adducing independent and uninterested witnesses.
Concomitantly, it was submitted by the Ld. Addl. PP for the State
no ground of any indulgence or relaxation even in the sentence
granted to the appellant is made out by the appellant, besides
considering the gravity of offence involved, the appellant is not
entitled to the benefit of the provisions under the Probation of
Offenders Act. Accordingly, Ld. Addl. PP for the State submitted
that the present appeal deserves to be dismissed at the outset, as
grossly malicious and devoid of merits.
4.2. Learned Counsel for respondent no. 2/prosecutrix,
while supplementing the arguments of Ld. Addl. PP for the State
vehemently contended that the prosecutrix’s testimony has been of
sterling quality, unrebutted in material particulars and intelligibly
points out towards the guilt of the appellant/accused. As per the
Ld. Counsel, it is trite law that conviction of an accused can be
premised/based on the testimony even of a sole prosecutrix, which
in the instant case is sufficiently established from the cogent and
unblemished evidence of the complainant. Ld. Counsel further
asserted that both the impugned judgment as well as impugned
order on sentence was passed by the Ld. Trial Court after
appreciating the facts and circumstances as well as settled judicial
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dictates, not demanding any interference by this Court.
Accordingly, Ld. Counsel entreated that the present appeal may be
dismissed at the outset, as abuse of process of law.
5. The arguments of Ld. Counsel for the appellant, Ld.
Counsel for the complainant/respondent no. 2 as well as that of Ld.
Addl. PP for the State/respondent no. 1 have been heard and the
record(s), including the Trial Court Record and the written
submission filed on behalf of the appellants as well as the case
laws relied upon by the parties, thoroughly perused.
6. At the outset, this Court deems it apposite to
enunciate the scope of jurisdiction of this Court in an appeal. In
this regard, this Court it is pertinent to outrightly make a reference
to the decision of the Hon’ble Supreme Court1 in Atley v. State of
U.P., 1955 SCC OnLine SC 51, wherein the Hon’ble Court, while
delving into the ‘scope an ambit’ of appellate court’s jurisdiction
inter alia noted as under;
“8. … It is also well settled that the Court of appeal
has as wide powers of appreciation of evidence in an
appeal against an order of acquittal as in the case of an
appeal against an order of conviction, subject to the
riders that the presumption of innocence with which
the accused person starts in the trial court continues
even up to the appellate stage and that the appellate
court should attach due weight to the opinion of the
trial court which recorded the order of acquittal. If the
appellate court reviews the evidence, keeping those
principles in mind, and comes to a contrary
conclusion, the judgment cannot be said to have been
vitiated. (See in this connection the very cases cited at
the Bar, namely, Surajpal Singh v. State [1951 SCC
1207: AIR 1952 SC 52]; Wilayat Khan v. The State of
Uttar Pradesh [1951 SCC 898: AIR 1953 SC 122]. In
our opinion, there is no substance in the contention
raised on behalf of the appellant that the High Court
was not justified in reviewing the entire evidence and
coming to its own conclusions….”
(Emphasis supplied)
1
Reference further made to; Padam Singh v. State of U.P., (2000) 1 SCC 621.
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7. Correspondingly, the Hon’ble Apex Court in
Narendra Bhat v. State of Karnataka, (2009) 17 SCC 785, iterated
in respect of the foregoing as under;
“3. This Court has in a series of judgments held
that a court exercising appellate power must not only
consider questions of law but also questions of fact
and in doing so it must subject the evidence to a
critical scrutiny. The judgment of the High Court must
show that the Court really applied its mind to the facts
of the case as particularly when the offence alleged is
of a serious nature and may attract a heavy
punishment.”
(Emphasis supplied)
8. Quite evidently, from a conjoint reading of the
aforenoted judicial dictates it can be perspicuously deduced that
the jurisdiction of this Court in an appeal extends to reappreciation
of the entire material placed on record of the trial court and to
arrive at an independent conclusion as to whether the said evidence
can be relied upon or not. In fact, as aforenoted, court(s), while
exercising appellate power is not required to consider the question
of law, rather, also question of facts to affirmatively reach a
conclusion of guilt or innocence of an accused. In fact, it is trite
law1 that non-re-appreciation of the evidence on record in an
appeal may affect the case of either the prosecution or even the
accused. Needless to reemphasize that the appellate court is to be
further wary of fact that presumption of innocence of an accused,
even extents until an accused is held guilty by the final court of
appeal and that such a presumption is neither strengthened by an
acquittal nor weakened by a conviction in the trial court.
9. Therefore, being cognizant of the aforesaid
principles, however, before proceeding with the determination of
the rival contentions of the parties, it would be pertinent to
reproduce the relevant provisions under IPC, for the purpose of
1
State of Gujarat v. Bhalchandra Laxmishankar Dave, (2021) 2 SCC 735.
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“39. “Voluntarily”-A person is said to cause an
effect “voluntarily” when he causes it by means
whereby he intended to cause it, or by means which, at
the time of employing those means, he knew or had
reason to believe to be likely to cause it.
*** *** ***
319. Hurt-Whoever causes bodily pain, disease or
infirmity to any person is said to cause hurt.
*** *** ***
321. Voluntarily 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”.
323. Punishment for voluntarily causing hurt-
Whoever, except in the case provided for by section
334, voluntarily causes hurt, shall be punished with
imprisonment of either description for a term which
may extend to one year, or with fine which may
extend to one thousand rupees, or with both.
*** *** ***
354. Assault or criminal force to woman 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 thereby
outrage her modesty, 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.”
(Emphasis supplied)
10. Notably, it is observed from a perusal of the aforesaid
provisions, in particular, the provision under Section 323 IPC, it is
observed that to bring home charges/culpability under the said
provision, the prosecution is required to prove; (a) the victim
suffered from bodily pain, disease or infirmity; (b) that the accused
caused the said bodily pain, etc.; (c) the accused did so
intentionally or with knowledge that in the process, hurt would be
caused; and (d) that the case was not covered under Section 334 1
IPC. Markedly, the essence of offence under Section 323 IPC lies
1
“334. Voluntarily causing hurt on provocation-Whoever voluntarily causes hurt on grave and sudden
provocation, if he neither intends nor knows himself to be likely to cause hurt to any person other than the
person who gave the provocation, shall be punished with imprisonment of either description for a term which
may extend to one month, or with fine which may extend to five hundred rupees, or with both.”
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in the accused’s causing hurt to the victim, voluntarily, i.e.,
intentionally or with knowledge that in the process, hurt would be
caused. Significantly, the term, ‘ hurt’ in turn, is defined under
Section 319 IPC as causation of any bodily pain, disease or
infirmity to a victim. Quite evidently, though, disease or infirmity
may have external manifestation, however, bodily pain may not be
easily perceivable from any medical report. Ergo, it is quite
understandable that the superior courts have persistently avowed
that in order for conviction under Section 323 IPC to stand, it is not
essential for production of an injury/medical report by the
prosecution. Reference in this regard is made to the decision in
Lakshman Singh v. State of Bihar, (2021) 9 SCC 191, wherein the
Hon’ble Supreme Court in unambiguous terms noted as under;
“11. Now so far as the submission on behalf of the
appellant-accused that all the appellants were alleged
to have been armed with lathis and so far as PW 8 is
concerned, no injury report is forthcoming and/or
brought on record and therefore they cannot be
convicted for the offence under Section 323 IPC is
concerned, at the outset, it is required to be noted that
PW 8 in his examination-in-chief/deposition has
specifically stated that after he sustained injuries,
treatment was provided at Government Hospital,
Paatan. He has further stated in the cross-examination
on behalf of all the accused persons except accused
Dinanath Singh that he sustained 2-3 blows of
truncheons. He has also stated that he does not exactly
remember that how many blows he suffered.
According to him, he first went to Police Station,
Paatan along with the SHO of Police Station, Paatan,
where his statement was recorded and thereafter the
SHO sent him to Paatan Hospital for treatment. Thus,
he was attacked by the accused persons by
lathis/sticks and he sustained injuries and was treated
at Government Hospital, Paatan has been established
and proved. It may be that there might not be any
serious injuries and/or visible injuries, the hospital
might not have issued the injury report. However,
production of an injury report for the offence under
Section 323 IPC is not a sine qua non for establishing
the case for the offence under Section 323 IPC.
Section 323 IPC is a punishable section for voluntarily
causing hurt. “Hurt” is defined under Section 319 IPC.
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As per Section 319 IPC, whoever causes bodily pain,
disease or infirmity to any person is said to cause
“hurt”. Therefore, even causing bodily pain can be
said to be causing “hurt”. Therefore, in the facts and
circumstances of the case, no error has been
committed by the courts below for convicting the
accused under Section 323 IPC…”
(Emphasis supplied)
11. In so far as the conviction under Section 354 IPC is
concerned, it is required of the prosecution to prove/establish; (i)
commission of criminal assault or use of criminal force on a
person, who is a woman; (ii) use of criminal force on such victim
by the aggressor/accused; and (iii) use of criminal force upon such
a woman with a mens rea (intention or knowledge) to ‘outrage her
modesty’. In this regard, this Court deems is further apposite to
refer to the decision in Vidyadharan v. State of Kerala, (2004) 1
SCC 215, wherein the Hon’ble Supreme Court1, while explicating
the basic ingredients of Section 354 IPC, noted as under;
“9. In order to constitute the offence under Section
354 mere knowledge that the modesty of a woman is
likely to be outraged is sufficient without any
deliberate intention of having such outrage alone for
its object. There is no abstract conception of modesty
that can apply to all cases. (See State of Punjab v.
Major Singh [AIR 1967 SC 63 : 1967 Cri LJ 1] .) A
careful approach has to be adopted by the court while
dealing with a case alleging outrage of modesty. The
essential ingredients of the offence under Section 354
IPC are as under:
(i) that the person assaulted must be a woman;
(ii) that the accused must have used criminal force
on her; and
(iii) that the criminal force must have been used on
the woman intending thereby to outrage her modesty.
10. Intention is not the sole criterion of the offence
punishable under Section 354 IPC, and it can be
committed by a person assaulting or using criminal
force to any woman, if he knows that by such act the
modesty of the woman is likely to be affected.
Knowledge and intention are essentially things of the
mind and cannot be demonstrated like physical
1
Premiya v. State of Rajasthan, (2008) 10 SCC 81.
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objects. The existence of intention or knowledge has
to be culled out from various circumstances in which
and upon whom the alleged offence is alleged to have
been committed…”
(Emphasis supplied)
12. Analogously, the Hon’ble Supreme Court in Raju
Pandurang Mahale v. State of Maharashtra & Ors.,
MANU/SC/0116/2004, cogitating on the ingredients of the
offence under Section 354 IPC and the meaning of the term,
‘modesty’, remarked as under;
“11. Coming to the question as to whether Section
354 of the Act has any application, it is to be noted that
the provision makes penal the assault or use of
criminal force to a woman to outrage her modesty.
The essential ingredients of offence under Section 354
IPC are:
(a) That the assault must be on a woman.
(b) That the accused must have used criminal force
on her.
(c) That the criminal force must have been used on
the woman intending thereby to outrage her modesty.
12. 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.
The act of pulling a woman, removing her saree,
coupled with a request for sexual intercourse, is such
as would be an outrage to the modesty of a woman;
and knowledge, that modesty is likely to be outraged,
is sufficient to constitute the offence without any
deliberate intention having such outrage alone for its
object. As indicated above, the word ‘modesty’ is not
defined in IPC. The Shorter Oxford Dictionary (Third
Edn.) defines the word ‘modesty’ in relation to woman
as follows:
“Decorous in manner and conduct; not forward or
lowe; Shame-fast, Scrupulously chast.”
*** *** ***
14. Webster’s Third New International Dictionary
of the English Language defines modesty as “freedom
from coarseness, indelicacy or indecency; a regard for
propriety in dress, speech or conduct”. In the Oxford
English Dictionary (1933 Edn.), the meaning of the
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by ABHISHEK
ABHISHEK GOYAL
Date:
GOYAL 2025.01.08
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word ‘modesty’ is given as “womanly propriety of
behavior; scrupulous chastity of thought, speech and
conduct (in man or woman); reverse or sense of shame
proceeding from instinctive aversion to impure or
coarse suggestions”…”
(Emphasis supplied)
13. Pertinent, for the purpose(s) of the present discourse
to also make a reference to the decision of the Hon’ble Supreme
Court in State of Punjab v. Major Singh, 1966 SCC OnLine SC 51,
wherein the Hon’ble Court, while confronted with the issue
whether a female child of seven-and-a-half months could be said to
be possessed of ‘modesty’ which could be outraged, remarked as
under;
“15. I think that the essence of a woman’s modesty
is her sex. The modesty of an adult female is writ large
on her body. Young or old, intelligent or imbecile,
awake or sleeping, the woman possesses a modesty
capable of being outraged. Whoever uses criminal
force to her with intent to outrage her modesty
commits an offence punishable under Section 354.
The culpable intention of the accused is the crux of the
matter. The reaction of the woman is very relevant, but
its absence is not always decisive, as for example,
when the accused with a corrupt mind stealthily
touches the flesh of a sleeping woman. She may be an
idiot, she may be under the spell of anaesthesia, she
may be sleeping, she may be unable to appreciate the
significance of the act; nevertheless, the offender is
punishable under the section.”
(Emphasis supplied)
14. Remarkably, in the aforesaid dictate, the Hon’ble
Apex Court unambiguously explicated 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, i.e.,
breasts, mouth any other body parts, etc., by an accused, without
the consent of the complainant/victim, would indubitably and
plainly fall within the four corners of the provisions under Section
354 IPC.
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15. Consequently, mindful of the principles hereinunder
noted, this Court would now appreciate the evidence and material
placed on record. At the outset, it is pertinent to refer to the
deposition/testimony of the prosecutrix/complainant/PW-1/X
before the Ld. Trial Court, who deposed about the incident in
question. As per the prosecutrix, on 14.03.2016, she was working
as a domestic help in the house of the appellant/accused, since 18
(eighteen) years, prior to her deposition. Further, as per the
prosecutrix, on the day of incident, she/PW-1 was cooking food in
the house of the appellant and when the food was cooked,
she/PW-1 went to put the tomatoes in the fridge. As the prosecutrix
was opening the fridge and putting the tomatoes in it, the appellant
is asserted to have come/emerged from behind and held PW-1 in
his/appellant’s arm as well as forcefully pressed her/PW-1’s breast
with his both hands. Consequently, as per PW-1, she/PW-1 fell
unconscious due to the incident and there was no one in the house,
except the appellant and the prosecutrix. After around 10-15
minutes, as per the prosecutrix, she/PW-1 regained consciousness
and, was weeping as well as scared. The prosecutrix further
asserted that the appellant tried to stop her/PW-1 in the house and
on another floor, situated above the house where the incident had
happened, wife and servant of the appellant resided, however, no
one is stated to be present, when the appellant committed the crime
with her/the prosecutrix. The prosecutrix further proclaimed that
prior to the incident, the appellant tried to outrage her modesty,
which she/PW-1 informed to appellant’s mother, who is asserted to
have assured the prosecutrix that her son would not repeat the
incident in future. Correspondingly, as per PW-1, the appellant’s
mother is further avowed to have given her/prosecutrix,
oath/assurance that she/PW-1 would not tell the incident to
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ABHISHEK GOYAL
Date:
anyone. Further, as per PW-1, after the incident, she got very
scared and continued to weep for the entire night and when her
husband asked her/PW-1 in the morning as to the reason of her
crying as well as PW-1’s children enquired her for the reasons as to
non-consumption of food, PW-1 is asserted to have narrated the
entire incident to her husband, children and few neighbours, as
well as taken them to appellant’s house. Subsequently, as per
PW-1, her daughter called at 100 number and the police reached at
the spot, as well as taken the appellant to the police station. The
appellant, as per PW-1, is also proclaimed to have threatened
her/PW-1’s daughter by saying that he/appellant would also buy
her/appellant’s daughter. Thereafter, as per PW-1, she along with
her family went to the police station, where she lodged her
complaint to the police vide Ex. PW1/A, bearing PW-1’s
signatures at point ‘A’. PW-1 further deposed that the incident was
committed by the appellant, after his divorce and that PW-1’s
medical was also got conducted with the help of police officials.
On 16.03.2016, as per PW-1, her statement under Section 164
Cr.P.C. was got recorded before the Ld. MM. Pertinently, the
prosecutrix correctly identified the appellant as accused before the
Ld. Trial Court.
16. Relevantly, in her cross-examination dated
25.04.2017 by/on behalf of the appellant, PW-1/prosecutrix
asserted as under;
“XXX by Sh. ***, Ld. Counsel for accused.
I am not the owner of house no. 681, Kundewalan,
Ajmeri Gate, Delhi. We are paying the rent of this
house to the owner of the house, i.e., father of accused
Sh. Vijay Bhushan Bhargava. I am residing along with
my family members in this house for last about 18
years. I was not paying rent in currency. I was working
in their house and they used to deduct the rent from
my salary. 18 years back, my salary was Rs. 400/- per
month. I had left the work after the incident on
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ABHISHEK GOYAL
GOYAL Date:
2025.01.08
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14.03.2016 and at that time my salary was Rs. 5,000/-
per month. The complaint Ex. PW1/A was written by
the lady police official. Again said, lady police had
made my daughter write my complaint. On
15.03.2016, I along with my husband, daughter, son
and neighbours had went to the house of the accused
at around 8:00 am in the morning. At that time,
accused and his father along with one servant Hukum
was present in the house. We had called the police at
around 8-8:30 am. It is correct that I, accused and all
other persons along with police went to the police
station. It is correct that what so ever I had told in my
examination in chief today was told by me to my
daughter at the time when she wrote my complaint.
I had not given any other statement to police
except my complaint Ex. PW1/A. I had told my
daughter when she was writing my complaint that I
had went to put tomatoes in the refrigerator.
Confronted with statement Ex. PW1/A wherein it is
not so recorded.
I had told my daughter when she was writing my
complaint that I became unconscious for 10-15
minutes after the assault. Confronted with statement
Ex. PW1/A wherein the time period is not so recorded.
I had told my daughter when she was writing my
complaint that accused tried to stop me inside the
house after the incident when I gained consciousness.
Confronted with statement Ex. PW1/A wherein the
same is not so recorded.
I had told my daughter when she was writing my
complaint that I was weeping and very scared after
gaining consciousness. Confronted with statement Ex.
PW1/A wherein the same is not so recorded.
I had not told my daughter when she was writing
my complaint that prior to the incident also, accused
person tried to outrage my modesty which I told to his
mother over which his mother assured me that his son
would not repeat the incident in the future and mother
of the accused also gave me her oath so that I would
not tell the incident to anyone.
I had told my daughter when she was writing my
complaint that after the incident, I was very scared of
the incident and continued weeping whole night. My
husband asked in the morning why I was weeping
whole night.. Confronted with statement Ex. PW1/A
wherein the same is not so recorded.
I had told my daughter when she was writing my
complaint that my children also asked why I had not
consumed the food in the night. Thereafter, I narrated
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ABHISHEK GOYAL
Date:
GOYAL 2025.01.08
15:51:52
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the whole incident happened with me to my husband,
children and few neighborers and took them to the
accused Ajay Bhargava’s house. Confronted with
statement Ex. PW1/A wherein the same is not so
recorded.
I had told my daughter when she was writing my
complaint that Ajay Bhargava also threatened my
daughter by saying that he would also buy her.
Confronted with statement Ex. PW1/A wherein the
same is not so recorded.
It is correct that the owner of house no. 681.
Kundewalanm, Ajmeri Gate, Delhi Sh. Vijay Bhushan
Bhargava the father of accused used to deduct the rent
of the said property from my salary. My whole salary
was deducted by my owner Sh. Vijay Bhushan
Bhargava as a rent of the property where I am residing
I.e. house no. 681, Kundewalanm, Ajmeri Gate, Delhi.
It is incorrect to suggest that my owner Sh. Vijay
Bhushan Bhargava the father of the accused had
requested me and my family members of vacate the
rented property after the death of his wife Ms. Nisha
Rani Bhargava, by saying now there is no need of your
further service. It is incorrect to suggest that no
altercation was made with me and my other family
member with the father of the accused on vacating of
the rented premises. It is incorrect to suggest that on
such incident was happened as stated by me in
examination in chief before this Hon’ble Court and the
question of asking vacating the rented property hold
by me and my family members, I made a false case
against the present accused (son of my landlord Sh.
Vijay Bhushan Bhargava) in order to built up pressure
on the family members of the accused in order to not
to vacate the tenanted property. It is correct that I have
stated all the facts to the doctors who had medically
examined me. It is correct that I have not disclosed the
name of the accused on MLC Ex. PW2/A. I had not
told the doctor who had conducted my gynecological
examination dt. 15.03.2016 that there was two other
servants came for help me and gave me water when I
regain the consciousness after the incident.
Confronted with the documents Ex. PW2/B where it is
so recorded. It is correct that the document Ex. PW2/A
and Ex. PW2/B bears my signature at point A and B
respectively. It is wrong to suggest that no servant
namely Hukum Singh, his wife Ms. Vashnavi and the
father of the accused were present in the house where
the alleged incident took place. It is correct that I have
received a legal notice regarding the vacating of
rented property occupied by me and my family
members through advocate of father of the accused. It
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by ABHISHEK
ABHISHEK GOYAL
Date:
GOYAL 2025.01.08
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+0530
is also correct my lawyer has also replied to the said
notice. (Vol. The said notice was received after the
incident.) I do not know whether the police had
recorded the statement of my husband, daughter and
son but police had recorded my statement and
obtained my signature on the statement recorded by
the police. We all left the police station at about 4:0
pm on 15.03.2016. It is wrong to suggest that I am
deposing falsely against the accused. It is wrong to
suggest that no such incident was happened with me.
It is wrong to suggest that I do not want to vacate the
rented property belonging to the father of the accused
and only to create pressure on the family members of
the accused, I registered a false case against the
present accused. It is wrong to suggest that on
15.03.2016 at about 8:30 am, I alongwith other family
members went to the house of my landlord to
threatened him if he will ask for vacating the rented
premises then he and his family members will face the
music and on my instigation my daughter had called
the police and made a false complaint against the
present accused.”
(Emphasis supplied)
17. Germane for the purposes of the present discourse to
make a reference to the testimony of PW-2/Dr. Shivani Vats,
Medical Officer, Lok Nayak Hospital, who deposed in her
testimony before the Ld. Trial Court that she was working in the
said Hospital for around one and a half year prior to the date of her
deposition and that on 15.03.2016, she/PW-2 had examined the
victim/PW-1 vide MLC No. EDC 011762 (Ex. PW 2/A), bearing
PW-2’s signatures at point A. Further, as per PW-2, vide
emergency slip related to the victim/PW-1 (Ex. PW2/B), bearing
PW-2’s signatures at point A, the victim was referred to
gynecological department. Significantly, in her cross-examination,
PW-2 proclaimed that on the back of page (Ex. PW2/B), the
writing was not hers and that she/PW-2 had merely referred PW-1
to gynecological department. Correspondingly, as per PW-2, the
said back page, might be written by the gynecological Doctor and
that on Ex. PW2/A, PW-2 had, “written alleged history of victim
CA No. 282/2019 Ajay Bhargava v. State & Anr. Page 22 of 47
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by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.01.08
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whatever told by the victim nothing added of subtracted by me in
this MLC.”
18. Apposite to further refer to the deposition of
PW-4/Sh. ‘B’, father of the prosecutrix, who asserted that his
wife/PW-1 was working as maid servant and that they used to live
in the rented house of the appellant. As per PW-4, on the date of
incident, his wife was working/performing household work in the
appellant’s house and that no one was present in the appellant’s
house, except the appellant. Further, PW-4 proclaimed that when
his wife was opening the fridge, the appellant came from behind
and caught her from behind and he pressed the breast of PW-4’s
wife forcefully, upon which PW-4’s wife got scared and fell
unconscious (objected to by Ld. Counsel for the appellant before
the Ld. Trial Court on the ground that the statement of PW-4 was
hearsay). PW-4 further asserted that when his wife gained
consciousness, she came to her house, and she started weeping.
PW-4 further avowed that due to night and her being scared,
PW-4’s wife did not inform the incident to him/PW-4 and she did
not even take dinner. Further, as per PW-4, on the following
morning when his/PW-4’s children and he/PW-4 inquired from
PW-1 as to what had happened with her, she/PW-1 told them about
the entire incident and thereafter, PW-4 along with his son,
daughter and some other persons from neighborhood went to the
appellant’s house and asked the appellant the reason for
commission of the incident/act with PW-1. Whereupon, the
appellant, as per PW-4 is deposed to started manhandling and
quarreling with them and thereafter, PW-4’s daughter called at 100
number. Upon this, PW-4 asserted that the Police reached there and
apprehended the appellant. PW-4 further correctly identified the
appellant before the Ld. Trial Court. Notably, in his cross-
CA No. 282/2019 Ajay Bhargava v. State & Anr. Page 23 of 47 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.01.08 15:52:06 +0530 examination, PW-4 declared as under; "XXX by Sh. ***, Ld. Counsel for accused.
We all reached at the house of the accused at about
6.00am in the morning. We remained at the house of
the accused for about 15-20 minutes. First police took
the accused Ajay Bhargav to the police station then we
all reached at police station including my son, my
daughter, my wife. We left the police station Hauz
Qazi within half an hour from reaching the police
station. In the police station the sister of the accused
and one lawyer was also there, whose name I do not
know were also present and threatened us not to lodge
a complaint against the accused. I do not know
whether the police had recorded my statement or not.
But my daughter might be knowing about the same. In
my presence two police officials recorded the
statement of my wife and after this taken her to the
hospital. Police did not inquire from me anywhere
with respect to this incident nor recorded my
statement in this respect. We are living on rent in H.
No. 681, Kundewalan, Ajmeri Gate, Delhi. Our rent
was being deducted monthly from the salary of my
wife by the owner of the house in which we are living
on rent. We are living in the aforesaid premises for the
last 17-18 years. From the beginning the rent was Rs.
400/- only and it remained the same till my wife left
the job, i.e. on the day of alleged incident. My wife
was getting salary of Rs. 5000/- per month since
beginning of her services as told by her to me. It is
correct that the owner/landlord of the H.No. 681,
Kundewalan, Ajmeri Gate, Delhi is the father of the
accused namely Sh. Vijay Bhushan Bhargav. My wife
was weeping in front of me and my children the whole
night, but did not tell any reason for weeping in the
night to us. I did not tell to the police that the sister and
lawyer of accused were threatening us. My wife did
not bring any cash in shape of salary at home till she
worked there. I cannot tell the exact time in reaching
of my wife at home. I did not asked my wife as to why
she was weeping at night, My wife told me that owner
of the house (Father of accused) had asked to her to
vacate the rented accommodation. On this I told my
wife and children to go to the house of father of the
accused for knowing the reason as to why he wants to
get the house vacated. I told the police that accused
misbehaved and manhandled with us when we
reached at his house.
At this stage witness is confronted with the his
statement Ex. PW-4/DX, however witness states that I
have never made any such statement before the police.
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It is wrong to suggest that I am deposing falsely at
the Instance of my wife. It is further wrong to suggest
that my wife had made false complaint against the
present accused with the police only to create pressure
on the father of accused for not vacating the rented
property belonging to father of the accused.”
(Emphasis supplied)
19. Similarly, PW-5/’R’, daughter of the prosecutrix
deposed on the same lines as that of PW-4 and inter alia affirmed
that the whole night, they tried to ask PW-1 as to what had
happened, however, she/PW-1 did not disclose anything and on the
following morning, on PW-5’s persuasion, PW-1 is asserted to
have narrated the entire incident to them. Subsequently, as per
PW-5, she/PW-5 along with her father, brother and mother/PW-1
went to the house of the appellant and asked him/confronted him
as to why he had committed the incident/act with PW-1, upon
which, heating arguments ensued between the appellant and all of
them and in the scuffle, appellant is proclaimed to have hit
her/PW-5’s brother, besides PW-1 is also proclaimed to have
sustained injury in the said process. PW-5 further asserted that
thereafter, she/PW-5 called at 100 number, when the appellant
pushed them from their house after abusing them as well as
threatening them by saying that he/the appellant would buy
her/PW-5 and her mother/PW-1. Subsequently, PW-5 asserted that
she along with her mother, father and brother went to the police
station and FIR was got lodged. Relevant at this stage to reproduce
the cross examination of PW-5, wherein she asserted as under;
“XXX by Sh. ***, Ld. Counsel for accused.
We reached in the police station at about 9.00 or
10.00 a.m. I went to hospital alongwith my mother for
her medical examination at about 1.00 p.m. from
police station. I left the police station alongwith my
mother finally at about 5.00 p.m. It is correct that we
are living in the rented property belonging to the
accused’s father namely Shri Vijay Bhushan Bhargav.
We are living in this property number 681, Kunde
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by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.01.08
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Walan, Ajmeri Gate for the last about 18-19 years. It is
correct that we used to pay rent to the owner of this
property belonging to the father of the accused. I do
not remember how much the rent was used to pay.
The father of the accused told my whole family
whenever this property will be sold, the whole amount
of the salary of my mother shall be paid by the father
of the accused.
No, our neighbours had accompanied us to the
house of the accused on the day of lodging of
complaint to the police. Police had not recorded the
statement of my brother and father. Police had not
record my statement in this case but I have written the
complaint Ex. PW-1/A on behalf of my mother in the
police station. Whatever told by my mother, I have
recorded the same on paper. I have not added or cut
any story told by my mother from my side, while I was
writing the statement Ex. PW-1/A
The father of the accused never asked to vacate the
house where we are living on rent. My mother used to
tell me that the mother of the accused repeatedly
quarreled with my mother.
I had written in Ex. PW-1/A that accused Ajay
Bhargav had threatened my mother by saying that he
would also buy her. Confronted with the statement Ex.
PW-1/A wherein it is not so recorded.
I had written in the complaint Ex. PW-1/A that the
accused had tried to stop my mother inside the house
after the incident when she gained consciousness.
Confronted with the statement Ex. PW-1/A, wherein it
is not so recorded.
I had written in the complaint Ex. PW-1/A that my
mother went to put tomatoes in the refrigerator,
Confronted with the statement Ex. PW-1/A wherein it
is no so recorded.
It is wrong to suggest that I am deposing falsely at
the behest of my mother because the father of the
accused asked our family to vacate the rented property
where we are living. It is further wrong to suggest that
in order to create pressure upon the father of the
accused for not vacating the rented premises
belonging to the father of the accused, due to this
reason, my mother made false case against the
accused present in the Court.
The police took the accused Ajay Bhargav to the
police station alongwith us from the house of the
accused and the except Ajay Bhargav no other persons
from the family of the accused person were present inCA No. 282/2019 Ajay Bhargava v. State & Anr. Page 26 of 47
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GOYAL Date:
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the police station till we left the police station at 5.00
p.m.
My mother had not told me that she became
unconscious for 10-15 minutes after the assault while
I was writing the complaint Ex. PW-1/A. My mother
had told me that she was scared of the incident and
continue weeping whole night and further told that her
husband asked in the morning why she was weeping
whole night. I have recorded this fact in complaint Ex.
PW-1/A. Confronted with complaint Ex. PW-1/A
wherein it is not so recorded.
It is wrong to suggest that I am deposing falsely at
the behest of my family.”
(Emphasis supplied)
20. Here, this Court deems it apt to further refer to the
testimony of PW-3/SI Madan Lal, who deposed about the
registration of the FIR in question on 15.03.2016 as Ex. PW3/A
(OSR), bearing PW-3’s signatures at point A, as well as proved the
certificate under Section 65B of the Indian Evidence Act, 1872
(hereinafter referred to as the ‘Evidence Act‘) to the said effect as
Ex. PW3/B, bearing PW-3’s signatures at point A. PW-3 further
proclaimed that he endorsed the tehrir vide Ex. PW 3/C at point X.
bearing his signatures at point A and subsequently handed over the
rukka an copy of FIR to SI Raj Kumar. Correspondingly, PW-6/Ct.
Narender Kumar inter alia deposed that the appellant came to the
police station on 17.03.2016, thereafter, the IO investigated the
matter from the appellant and arrested him vide arrest memo Ex.
PW6/A, bearing signatures of PW-6 at point A. Further, as per
PW-6, the IO also prepared the personal search memo of the
appellant and subsequently, he/PW-6 along with the IO as well as
the appellant, went to LNJP Hospital where the medical
examination of the appellant was got done.
21. Significantly, for the present purpose, it is also
apposite to refer to the deposition of PW-7/SI Raj Kumar, who
proclaimed before the Ld. Trial Court that on 15.03.2016, he/PW-7
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was posted as SI at PS Hauz Qazi and that on the said day, the
complainant have a written complaint in the police station at
around 12.30 p.m. (Ex. PW1/A) inter alia complaining of chest
pain. Whereupon, as per PW-7, the prosecutrix was sent to LNJP
Hospital along with W/Ct. Priyanka. Subsequently, as per PW-7,
W/Ct. Priyanka, after returning from the Hospital, handed over the
MLC of the complainant (Ex. PW2/A and Ex. PW2/B) to
him/PW-7 and subsequently, he/PW-7 prepared a rukka on the
complaint of the complainant, as well as handed over the same to
the duty officer for the registration of the present FIR (Ex.
PW3/C), bearing PW-7’s signatures at point B. PW-7 further
proclaimed that after registration of FIR, he/PW-7 went to the
place of incident, i.e., H. No. 1425, Sita Ram Bazar, Delhi, where
appellant’s father was present. On 16.03.2016, as per PW-7,
he/PW-7 along with the complainant went to Tis Hazari Court for
recording of the statement of the complainant under Section 164
C.P.C. before the Ld. MM, which was proved by PW-7 as Ex.
PW7/A(Colly.), bearing PW-7’s signatures at point A. PW-7
further proclaimed that he served a notice to the appellant on
16.03.2016, whereupon the appellant appeared in PS Hauz Qazi on
17.03.2016 and the appellant was interrogated as well as arrested
vide memo Ex. PW6/A, bearing PW-7’s signatures at point A.
Correspondingly, the appellant is also stated to be personally
searched vide memo Ex. PW6/B, bearing PW-7’s signatures at
point B. PW-7 also asserted that upon completion of investigation,
he/PW-7 filed the final report before the Ld. Trial Court, as well as
correctly identified the appellant as accused at the time of his
deposition. Markedly, in his cross examination, PW-7 avowed as
under;
“XXX by Sh. ***, Ld. Counsel for accused.
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ABHISHEK GOYAL
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+0530
At present I do not remember at what time the
quarrel took place between the accused and
complainant. The complainant accompanied with her
husband and children at the time given her complaint
in PS. The complainant came in PS with a written
complaint in her hand, which was already written and
signed. I inquired from the persons, who were living
in premises, but they did not come forward to join the
investigation. On 15.03.2016 at about 06:30 pm, I
alone visited the spot. I did not do any writing work
nor recorded any statement during my interrogation. I
do not know regarding the call made by the
complainant in PS Hauz Qazi, I also do not know the
time when the said call was made. I presented the
rukka at 05.00 pm to the duty officer. I allowed the
complainant and her family members to leave the
police station with the assurance that we will make in
investigation on her complaint. On my visiting for
interrogation on the spot, I found only the father of the
accused. I had recorded the statement Priyanka in PS
on 15.03.2016 in evening and the statement of the
Narender was recorded in PS alter the arrest of the
accused.
It is wrong to suggest that I did not conduct the fair
and proper investigation in the present case. It is
further-wrong to suggest that I have falsely implicated
the accused in the present case on the false complaint
of the complainant. It is further wrong to suggest that I
am deposing falsely being IO of the present case. It is
further wrong to suggest that I did not record the
correct statement of the witnesses in the present case.
I did not find any other reason during my
investigation regarding the quarrel except the
complaint of the complainant. I tried my level best to
find out any other reason but nothing else was found.
I did not call the complainant in PS on my own but
she had come to the PS when she felt necessity.
It is wrong to suggest that I am deposing falsely.”
(Emphasis supplied)
22. Before proceeding further with the appreciation of
the aforenoted testimonies of the prosecution witnesses, it would
be relevant to deal the objection of the Ld. Counsel for the
appellant, inter alia, to the effect that the conviction of the
appellant could not have been premised on the sole testimony of
the prosecutrix ‘X’ in the absence of examination of the other
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servants/domestic help stated by ‘X’ to be present at the alleged
time of incident in her MLC. Further, as aforementioned, Ld.
Counsel has vehemently contended that the testimony of the
prosecutrix is replete with contradictions. Appositely, in order to
deal with the said contentions, this Court deems it pertinent to
outrightly make a reference to the decision of the Hon’ble
Supreme Court in State of Punjab v. Gurmit Singh, (1996) 2 SCC
384, wherein the Hon’ble Court, while dealing with evidentiary
value of the sole victim/prosecutrix, noted as under;
“21. …The courts should examine the broader
probabilities of a case and not get swayed by minor
contradictions or insignificant discrepancies in the
statement of the prosecutrix, which are not of a fatal
nature, to throw out an otherwise reliable prosecution
case. If evidence of the prosecutrix inspires
confidence, it must be relied upon without seeking
corroboration of her statement in material particulars.
If for some reason the court finds it difficult to place
implicit reliance on her testimony, it may look for
evidence which may lend assurance to her testimony,
short of corroboration required in the case of an
accomplice. The testimony of the prosecutrix must be
appreciated in the background of the entire case and
the trial court must be alive to its responsibility and be
sensitive while dealing with cases involving sexual
molestations.”
(Emphasis supplied)
23. Analogously, the Hon’ble High Court of Delhi in
State (NCT of Delhi) v. Pratap Singh, 2016 SCC OnLine Del 3207,
in the similar context observed as under;
“17. It is now well-settled that conviction for an
offence of rape/sexual assault can be based on the sole
testimony of prosecutrix, if the same is found to be
natural, trustworthy and worth being relied on. If the
evidence of the prosecutrix inspires confidence, it
must be relied upon without seeking corroboration of
her statement in material particulars…”
(Emphasis supplied)
24. Demonstrably, it is observed from above that it is a
settled law that conviction for an offence of sexual assault/rape,
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can be based on the sole testimony of the prosecutrix. In fact, even
on a general principle, it has been recurrently avowed1 by superior
courts in a catena of decisions that there is no legal impediment in
convicting a person on the sole testimony of a single witness if his
version is clear and reliable, reason underlying the same being;
‘the evidence has to be weighed and not counted’ . Notably so, in
the instances of sexual offences, courts have even gone on to the
extent to appreciate and declare2 that to seek corroboration to the
testimony of the prosecutrix before relying upon the same would
amount to adding insult to the injury sustained by such victim and
have, consequently, deprecated the said practice. Unmistakably,
the reasons for the same can be easily inferred from the decision of
the Hon’ble Supreme Court3 in State of Maharashtra v.
Chandraprakash Kewalchand Jain, (1990) 1 SCC 550, wherein the
Hon’ble Court observed as under;
“17. We think it proper, having regard to the
increase in the number of sex violation cases in the
recent past, particularly cases of molestation and rape
in custody, to remove the notion, if it persists, that the
testimony of a woman who is a victim of sexual
violence must ordinarily be corroborated in material
particulars except in the rarest of rare cases. To insist
on corroboration except in the rarest of rare cases is to
equate a woman who is a victim of the lust of another
with an accomplice to a crime and thereby insult
womanhood. It would be adding insult to injury to tell
a woman that her story of woe will not be believed
unless it is corroborated in material particulars as in
the case of an accomplice to a crime. Ours is a
conservative society where it concerns sexual
behaviour. Ours is not a permissive society as in some
of the western and European countries. Our standard
of decency and morality in public life is not the same
as in those countries. It is, however, unfortunate that
respect for womanhood in our country is on the
decline and cases of molestation and rape are steadily
growing. An Indian woman is now required to suffer
1
Kusti Mallaiah v. State of A.P., (2013) 12 SCC 680.
2
State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 and Munna v. State of M.P., (2014) 10 SCC 254
3
Reference also made to the decision of the Hon’ble Supreme Court in; Bharwada Bhoginbhai Hirjibhai v.
State of Gujarat, (1983) 3 SCC 217.
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indignities in different forms, from lewd remarks to
eve-teasing, from molestation to rape. Decency and
morality in public life can be promoted and protected
only if we deal strictly with those who violate the
societal norms. The standard of proof to be expected
by the court in such cases must take into account the
fact that such crimes are generally committed on the
sly and very rarely direct evidence of a person other
than the prosecutrix is available. Courts must also
realise that ordinarily a woman, more so a young girl,
will not stake her reputation by levelling a false charge
concerning her chastity.”
(Emphasis supplied)
25. Concurrently, this Court is also cognizant of the fact
that the incidents of sexual offences usually occur in secrecy, out
of public gaze and even in the cases where witnesses to such events
exit, they may not be forthcoming in supporting the prosecution’s
case. Unmistakably, under such circumstances, to discard the sole
testimony of a prosecutrix, consistent in material particulars and
withstanding the rigors of cross-examination, would amount to
causing gross prejudice as well as aggravating the plight of such
victim/prosecutrix on one hand, while acting as impetus for the
potential perpetrators of similar offences to proceed with their
nefarious designs. Needless to mention the same would not only
perpetuate a sense of blameworthiness in the prosecutrix/victim of
such offences, rather, expose such a victim to stigmatization and
penalization in the hands of the society despite the courage
exhibited by her to speak out against her perpetrator. Indisputably,
such a recourse would act antagonist to, both, the rule or law as
well as the sense of justice, on which the entire criminal
jurisprudence and rule of law are premised. Accordingly, the
contention of the Ld. Counsel for the appellant pertaining to the
lack of corroboration in the testimony of the victim/complainant in
the instant case, necessitates appreciation by this Court in light of
the foregoing observations.
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26. Correspondingly, in order to accurately appreciate the
contention of Ld. Counsel for the appellant pertaining to
contradictions/discrepancies in the testimonies of various
prosecution witnesses, it would be germane at this stage to explore
the judicial precedents governing the law of contradictions in the
testimony of the witness. In this regard, this Court deems it apt to
outrightly make a reference to the decision of the Hon’ble
Supreme Court in State of U.P. v. M.K. Anthony, (1985) 1 SCC
505, wherein the Hon’ble Court inter alia observed as under;
“10. While appreciating the evidence of a witness,
the approach must be whether the evidence of the
witness read as a whole appears to have a ring of truth.
Once that impression is formed, it is undoubtedly
necessary for the court to scrutinise the evidence more
particularly keeping in view the deficiencies,
drawbacks and infirmities pointed out in the evidence
as a whole and evaluate them to find out whether it is
against the general tenor of the evidence given by the
witness and whether the earlier evaluation of the
evidence is shaken as to render it unworthy of belief.
Minor discrepancies on trivial matters not touching
the core of the case, hyper-technical approach by
taking sentences torn out of context here or there from
the evidence, attaching importance to some technical
error committed by the investigating officer not going
to the root of the matter would not ordinarily permit
rejection of the evidence as a whole. If the court
before whom the witness gives evidence had the
opportunity to form the opinion about the general
tenor of evidence given by the witness, the appellate
court which had not this benefit will have to attach due
weight to the appreciation of evidence by the trial
court and unless there are reasons weighty and
formidable it would not be proper to reject the
evidence on the ground of minor variations or
infirmities in the matter of trivial details. Even honest
and truthful witnesses may differ in some details
unrelated to the main incident because power of
observation, retention and reproduction differ with
individuals…”
(Emphasis supplied)
27. Similarly, the Hon’ble Apex Court in Rammi v. State
of M.P., (1999) 8 SCC 649, while dealing with similar issue,
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remarked as under;
“24. When an eyewitness is examined at length it
is quite possible for him to make some discrepancies.
No true witness can possibly escape from making
some discrepant details. Perhaps an untrue witness
who is well tutored can successfully make his
testimony totally non-discrepant. But courts should
bear in mind that it is only when discrepancies in the
evidence of a witness are so incompatible with the
credibility of his version that the court is justified in
jettisoning his evidence. But too serious a view to be
adopted on mere variations falling in the narration of
an incident (either as between the evidence of two
witnesses or as between two statements of the same
witness) is an unrealistic approach for judicial
scrutiny.”
(Emphasis supplied)
28. Patently, from a conjoint reading of the above, it is
unambiguously deduced that minor discrepancies, which do not go
into the root of the matter and shake the basic version of the
witnesses, cannot be permitted to be annexed with any undue
weight. In fact, it is trite law1, the discrepancies which do not shake
the basic version of the prosecution and those which emanate due
to normal errors of perception or observation should not be given
importance and must necessarily be discarded. The rationale
behind the same is quite obvious, as elucidated by the Hon’ble
Supreme Court in State of U.P. v. Naresh, (2011) 4 SCC 324, inter
alia recording as under;
“30. In all criminal cases, normal discrepancies are
bound to occur in the depositions of witnesses due to
normal errors of observation, namely, errors of
memory due to lapse of time or due to mental
disposition such as shock and horror at the time of
occurrence. Where the omissions amount to a
contradiction, creating a serious doubt about the
truthfulness of the witness and other witnesses also
make material improvement while deposing in the
court, such evidence cannot be safe to rely upon.
However, minor contradictions, inconsistencies,
embellishments or improvements on trivial matters1
Appabhai v. State of Gujarat, 1988 Supp SCC 241
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which do not affect the core of the prosecution case,
should not be made a ground on which the evidence
can be rejected in its entirety. The court has to form its
opinion about the credibility of the witness and record
a finding as to whether his deposition inspires
confidence.
“9. Exaggerations per se do not render the
evidence brittle. But it can be one of the factors to
test credibility of the prosecution version, when
the entire evidence is put in a crucible for being
tested on the touchstone of credibility.” [Ed.: As
observed in Bihari Nath Goswami v. Shiv Kumar
Singh, (2004) 9 SCC 186, p. 192, para 9.
Therefore, mere marginal variations in the
statements of a witness cannot be dubbed as
improvements as the same may be elaborations of the
statement made by the witness earlier. The omissions
which amount to contradictions in material particulars
i.e. go to the root of the case/materially affect the trial
or core of the prosecution’s case, render the testimony
of the witness liable to be discredited…”
(Emphasis supplied)
29. Consequently, to recapitulate, in order to discard 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.
Ergo, in light of the foregoing, when the testimonies of the
witnesses brought on record, in particular that of PW-1/prosecutrix
is scrupulously analyzed, it is observed that the prosecutrix has
consistently deposed about the incident, i.e., on 14.03.2016, while
she was working at the appellant’s house, and had gone to keep
tomatoes in the fridge, the appellant came/emerged from behind
and held PW-1 in his/appellant’s arm as well as forcefully pressed
her/PW-1’s breast with his both hands. Consequently, as per PW-1,
she/PW-1 fell unconscious due to the incident and later on reached
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her home, where she was scared and wept the entire night and on
the following morning narrated the incident to her family
members. Following the same, the prosecutrix is asserted to have
reached the appellant’s home to confront him, however, when the
appellant started to fight with/rebuke them, the
complainant/prosecutrix reached the police station, seeking action
against the appellant. Notably, on the aspect of the date, particulars
of incident, i.e., appellant’s forcibly pressing the breasts of the
prosecutrix as well as of her/prosecutrix’s falling unconscious,
PW-1 has been consistent even in her complaint (Ex. PW1/A) and
statement recorded under Section 164 Cr.P.C. (Ex. P-1). However,
Ld. Counsel for the appellant has endeavored to accentuate the
contradictions in so far as the complainant’s non mentioning of her
keeping tomatoes in fridge or being restrained by the appellant or
the appellant’s alleged threatening to buy prosecutrix’s daughter as
well as of non specification of the alleged earlier incident in her
complaint as material contradictions in her testimony. However,
the said contention does not find favour with this Court in view of
the aforesaid dictates, unambiguously proclaiming that minor
contradictions, inconsistencies, embellishments or improvements
on trivial matters which do not affect the core of the prosecution
case, should not be made a ground on which the evidence can be
rejected in its entirety. In fact, the superior courts1 have persistently
avowed that witnesses tend to exaggerate the prosecution story and
that under such circumstances, if the exaggeration does not change
the prosecution story or convert it into an altogether new story,
allowance can be made for it. Reference in this regard is further
made to the decision in Shakila Abdul Gafar Khan v. Vasant
Raghunath Dhoble & Ors., MANU/SC/0677/2003, wherein the
1
Sheesh Ram & Ors. v. State of Rajasthan, MANU/SC/0063/2014.
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Hon’ble Apex Court, while iterating similar sentiments, noted as
under;
“27. The doctrine is a dangerous one specially in
India for if a whole body of the testimony were to be
rejected, because witness was evidently speaking an
untruth in some aspect, it is to be feared that
administration of criminal justice would come to a
dead-stop. Witnesses just cannot help in giving
embroidery to a story, however, true in the main.
Therefore, it has to be appraised in each case as to
what extend the evidence is worthy of acceptance, and
merely because in some respects the Court considers
the same to be insufficient for placing reliance on the
testimony of a witnesses, it does not necessarily
follow as a matter of law that it must be disregarded in
all respects as well. The evidence has to be shifted
with care. The aforesaid dictum is not a sound rule for
the reason that one hardly comes across a witness
whose evidence does not contain a grain of untruth or
at any rate exaggeration, embroideries or
embellishment. (See Sohrab s/o Beli Nayata and Anr.
v. The state of Madhya Pradesh,
MANU/SC/0254/1972: 1972CriLJ1302 and Ugar
Ahir and Ors. v. The State of Bihar,
MANU/SC/0333/1964: AIR1965SC277. An attempt
has to be made to, as noted above, in terms of
felicitous metaphor, separate grain from the chaff,
truth from falsehood. Where it is not feasible to
separate truth from falsehood, because grain and chaff
are inextricably mixed up, and in the process of
separation an absolutely new case has to be
reconstructed by divorcing essential details presented
by the prosecution completely from the context and
the background against which they are made, the only
available course to be made is to discard the evidence
in toto. (See Zwinglee Ariel v. State of Madhya
Pradesh, MANU/SC/0093/1952: AIR1954SC15 and
Balaka Singh and Ors. v. The State of Punjab,
MANU/SC/0087/1975: 1975CriLJ1734 . As observed
by this Court in State of Rajasthan v. Smt. Kalki and
Anr., MANU/SC/0254/1981: 1981CriLJ1012, normal
discrepancies in evidence are those which are due to
normal errors of observation, normal errors of
memory due to lapse of time, due to mental
disposition such as shock and horror at the time of
occurrence and those are always there however honest
and truthful a witness may be. Material discrepancies
are those which are not normal, and not expected of a
normal person. Courts have to label the category to
which a discrepancy may be categorized. While
normal discrepancies do not corrode the credibility of
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a party’s case, material discrepancies do so. These
aspects were highlighted recently in Krishna Mochi
and Ors. v. State of Bihar etc., MANU/SC/0327/2002:
2002CriLJ2645, Gangadhar Behera and Ors. v. State
of Orissa, MANU/SC/0875/2002: 2003CriLJ41 and
Rizan and Anr. v. State of Chhattisgarh,
MANU/SC/0036/2003: 2003CriLJ1226…”
(Emphasis supplied)
30. Quite evidently, in light of the foregoing, in the
instant case, simply because the prosecutrix embellished her
statement as to the appellant restraining her post incident or the
factum of the appellant’s threat to buy her daughter or
prosecutrix’s attempting to keep tomatoes in fridge is not
mentioned in her initial complaint, would not be in the considered
opinion of this Court, sufficient enough to discard her testimony as
to the commission of incident on the date and in the manner by the
appellant, as hereinunder mentioned. Needless to reiterate that
mere exaggerations and embellishments of the kind, as
accentuated by the Ld. Counsel for the appellant in the testimony
of the complainant/prosecutrix, further, in the considered opinion
of this Court cannot be termed to be material in nature so as to
discard the testimony of PW-1 in its entirety despite the fact that
the prosecutrix has been consistent in her deposition as to the
incident in question and the so called omissions or improvements,
do not affect the core of the prosecution case. Needless to mention
that, though, this Court is in agreement with the contention of the
Ld. Counsel for the appellant that PW-4/Sh. ‘B’ and PW-5/’R’,
husband and daughter of the prosecutrix, respectively, are hearsay
witnesses in respect of incident in question, however, are relevant
for the purposes of demonstrating res gestae and the subsequent
conduct of the prosecutrix in terms of the provisions Section 6 and
8 of the Evidence Act, respectively. Pertinently, both the said
witnesses, consistently deposed about the factum of prosecutrix
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by ABHISHEK
ABHISHEK GOYAL
GOYAL Date: 2025.01.08
15:53:19 +0530
being distressed on the night of incident and of her/prosecutrix’s
informing them of the incident on the following morning leading
to their visiting the appellant’s house and subsequently having the
complaint in question lodged at the concerned police station.
Needless to further mention that the ‘so called’
omissions/contradictions in the deposition of the said witnesses
cannot termed to be material, glaring or striking, so as to discredit
their otherwise cogent and consistent stand.
31. In so far as the contention of the Ld. Counsel for the
appellant pertaining to non-examination of two more servants,
stated to be present at the appellant’s home at the relevant point in
time is concerned, this Court outrightly observes that the
prosecutrix in her cross examination by/at the behest of the
appellant specifically denied that she has informed the Doctor,
who has conducted her gynecological examination that there were
two other servants present at the home, who came for her help and
gave her water when she regained consciousness. However,
despite the same, no attempt was made on the part of the appellant
to summon the said Doctor, who allegedly recorded the said
version in the MLC of the complainant. Markedly, in order to rebut
the said assertion of the prosecutrix in her cross examination,
though, the appellant endeavored to refer to the deposition of
PW-2/Dr. Shivani Vats wherein she inter alia asserted that
she/PW-2 had written the alleged history of the victim, “whatever
was told by the victim nothing added or subtracted by me in this
MLC”, however, it is to be noted that PW-2 was the progenitor of
the MLC No. EDC 011762 (Ex. PW2/A) as well as the emergency
slip (Ex. PW2/B), wherein under the history of patient it has been
merely recorded, “physical & sexual assault on 14/3/16 at around
6pm as told by patient herself…” and PW-2 specifically denied of
CA No. 282/2019 Ajay Bhargava v. State & Anr. Page 39 of 47
Digitally signed by
ABHISHEK ABHISHEK
GOYAL
GOYAL Date: 2025.01.08
15:53:23 +0530
having made any entry on the reverse side of the Ex. PW2/B. In
fact, in her cross-examination PW-2 explicitly remarked that on
the back page of Ex. PW2/B, the writing was not hers and that she
had merely referred the prosecutrix to gynecological department.
Further, as per PW-2, “the back page might be written by the
gynecological doctor and I do not know her personally…” Clearly,
the factum of presence of said two servants is written on the
reverse of Ex. PW2/B and as aforenoted, without proof thereof or
of appellant’s summoning the concerned Doctor in this regard, in
the considered opinion of this Court, not much credence can be
given to any such observation, especially when the prosecutrix
denied the suggestion to the contrary, as hereinunder noted. Even
otherwise, presuming that other persons were, in fact, present at
the house, when the incident is deposed by the prosecutrix to have
taken place, appellant made no endeavor to summon said
witnesses in his defence, except to put a suggestion to the
prosecutrix that servants, namely, Hukum Singh, his wife, Ms.
Vaishnavi and the father of the appellant were present at the house
when the incident had taken place, which suggestion the
prosecutrix had denied. Needless to mention, reasons for non-
production of such witnesses by/on behalf of the appellant are not
forthcoming. Even otherwise, this Court unambiguous observes
that mere fact that the prosecution, opted not to produce the other
public persons, i.e., ‘so called’ servants asserted to be present at the
time of incident or any other public persons who ought to have
heard the scream of the prosecutrix, as prosecution witnesses
before the Ld. Trial Court, as otherwise contended by Ld. Counsel
for the appellant, cannot, in the considered opinion of this Court,
be read against the prosecution in light of the decision of the
Hon’ble Supreme Court in Rajesh Yadav v. State of U.P., (2022)
CA No. 282/2019 Ajay Bhargava v. State & Anr. Page 40 of 47
Digitally signed by
ABHISHEK ABHISHEK GOYAL
GOYAL Date: 2025.01.08
15:53:27 +0530
12 SCC 200, wherein the Hon’ble Court in a similar situation, held
as under;
“34. A mere non-examination of the witness per se
will not vitiate the case of the prosecution. It depends
upon the quality and not the quantity of the witnesses
and its importance. If the court is satisfied with the
explanation given by the prosecution along with the
adequacy of the materials sufficient enough to
proceed with the trial and convict the accused, there
cannot be any prejudice. Similarly, if the court is of
the view that the evidence is not screened and could
well be produced by the other side in support of its
case, no adverse inference can be drawn. Onus is on
the part of the party who alleges that a witness has not
been produced deliberately to prove it.”
(Emphasis supplied)
32. Correspondingly, in as much as the contention of Ld.
Counsel for the appellant pertaining to prosecutrix’s falsely
implicating the appellant in the present case owing to the
appellant’s father asking the prosecutrix and her family to vacate
the premise is concerned, this Court deems it apposite to outrightly
refer to the deposition of PW-1/prosecutrix in this regard.
Relevantly, though, the prosecutrix admitted that she and her
family had been residing in the appellant’s father house, however,
in her cross examination, PW-1 specifically denied that Sh. Vijay
Bhushan Bhargava, appellant’s father requested her and her family
members to vacate the rented property after the death of his/Sh.
Vijay Bhushan Bhargava’s wife Ms. Nisha Rani Bhargava, by
saying now there was no need of her/PW-1’s further service.
Strikingly, Ld. Counsel for the appellant has placed much reliance
on the admission of the prosecutrix in her testimony that she had
received a legal notice regarding vacation of the rented property,
occupied by her and her family members through advocate of
appellant’s father and that the said notice was replied by
her/prosecutrix’s counsel, however, the prosecutrix further
CA No. 282/2019 Ajay Bhargava v. State & Anr. Page 41 of 47
Digitally signed
by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.01.08
15:53:33 +0530
asserted that the said notice was received after the incident in
question. Despite the same, the appellant made no endeavor to
place the said notice on record or confronted the prosecutrix to
avow that the notice was, in fact, issued by appellant’s father prior
to the incident in question or that the said notice became the
progenitor to falsely implicate the appellant in the present case, as
otherwise alleged on behalf of the appellant. Apposite to further
note, in respect of the foregoing, Ld. Counsel for the appellant has
further referred to the cross-examination of PW-4/Sh. ‘B’,
husband of the prosecutrix wherein he asserted that he was told by
his wife that the owner of the house, i.e., appellant’s father had
asked her to vacate the rented accommodation and upon this,
he/PW-4 told his wife and children to got to the appellant’s father’s
house for knowing the reason as to why he wants to get the house
vacated. However, despite such assertion, it is not forthcoming on
record as to when such an act/occurrence had transpired.
Markedly, Ld. Counsel for the appellant has asserted that PW-4
admitted in his cross examination that he asked the complainant
and his daughter previous night to go to the house of the appellant
following morning to seek reason why appellant’s father wanted
the house to be vacated. However, from a conscientious perusal of
the record of the Ld. Trial Court, it is observed that the factum of
complainant and his daughter being asked by PW-4 in the
‘previous night’ to go to the house of the appellant in the
‘following morning’ is not forthcoming from the evidence placed
on record, rather, a mere interpretation of the evidence of PW-4
recorded before the Ld. Trial Court. Needless to reiterate the date
and time of PW-4’s wife informing him of the appellant’s father
asking them to vacate the premise is not mentioned even under the
cross examination of PW-4. Ergo, under such circumstances, this
CA No. 282/2019 Ajay Bhargava v. State & Anr. Page 42 of 47Digitally signed by
ABHISHEK ABHISHEK GOYAL
GOYAL Date: 2025.01.08
15:53:38 +0530
Court is in concurrence with the finding of the Ld. Trial Court that
the appellant has failed to prove its said defence by demonstrating
as to when the appellant’s father asked the prosecutrix to vacate the
premise by producing any witness or documents on record.
Needless to reiterate, in light of assertion of the prosecutrix that the
notice of eviction was issued subsequent to the incident in
question, the appellant did not even confront or produce/prove any
such notice before the Ld. Trial Court to demonstrate that the same
formed a precursor of filing of the complaint by the prosecutrix
against the appellant. Concurrently, this Court is further in
agreement with the observation of the Ld. Trial Court that no
evidence has been brought on record by the appellant to show that
any case was filed to evict the complainant and her family.
Needless to mention that even under his statement recorded under
Section 313/281 Cr.P.C. the appellant merely asserted his false
implication in the present case by the prosecutrix, in an endeavor
to grab appellant’s father’s property. However, as aforementioned,
no evidence in this regard is forthcoming either by the appellants
nor does the said fact stands proved from cross examination of any
of the prosecution witnesses, for the reasons, aforenoted.
Relevantly, in this regard to reproduce the relevant extracts from
appellants’ statement under Section 313/281 Cr.P.C. on
18.02.2019, as under;
“Q1. It is in evidence against you mat PW-1
complainant had identified you before the Court as the
person, who on 14.03.2016 held the complainant from
behind, forcefully pressed her breast with both hands
and es a result she felt unconscious. You also tried to
stop her inside the house. You also earlier tried to
outrage her modesty about which she told to your
mother. You also threatened her daughter when she
called at 100 number. What do you have to say?
A. It is false. I am innocent and have been falsely
implicated in the present case by the complainant in
connivance with her family members and police
CA No. 282/2019 Ajay Bhargava v. State & Anr. Page 43 of 47Digitally signed
ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2025.01.08
15:53:42 +0530
officials as the complainant with her family members
wants to grab my father’s property, in which she
alongwith her family is stil residing. No such incident
had ever taken place.
*** *** ***
Q.5. Why the witnesses have deposed against you?
A. They are interested witnesses and have
maliciously and falsely deposed against me being
family members of the complainant. No such incident
had taken place as stated by the complainant. On.
14.03.2016, no such incident has taken place with the
complainant. The complainant and her family
members in order to grab the property of my father, in
which she along with her family members is residing
forcefully, has falsely implicated me in the present
case.
Q.6. Do you want to say anything else?
A. I am innocent and I have been falsely
implicated in this case.
Q.7. Do you want to lead DE?
A. No…”
(Emphasis supplied)
33. Accordingly, in light of foregoing, this Court is of the
considered opinion and in agreement with the finding of the Ld.
Trial Court that the testimony of the prosecutrix has been
consistent and unwavering in the instant case, in so far as the
material particulars and incident in question is concerned. As
aforenoted, the prosecutrix consistently deposed about the
incident, i.e., on 14.03.2016, while she was working at the
appellant’s house, and had approached the refrigerator, the
appellant came/emerged from behind and held PW-1 in
his/appellant’s arm as well as forcefully pressed her/PW-1’s breast
with his both hands. Consequently, as per PW-1, she/PW-1 fell
unconscious due to the incident and later on reached her home,
where she was scared and wept the entire night and on the
following morning narrated the incident to her family members,
leading eventually to the registration of FIR in question. Needless
to mention that the factum of hurt by the appellant to the
CA No. 282/2019 Ajay Bhargava v. State & Anr. Page 44 of 47
Digitally signed
ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2025.01.08
15:53:46 +0530
prosecutrix stands proved from her unswerving declaration of
pain, duly corroborated by presence of “mild tenderness on
sternum…” of the prosecutrix in her MLC No. EDC 011762 (Ex.
PW 2/A). Needless to reiterate that the
contradictions/improvements in the deposition of PW-1 cannot be
termed to be material, in the considered opinion of this Court,
besides the appellant has failed to prove its defence in the instant
case for the reasons hereinunder noted. Germane at this stage for
the purpose of an exhaustive analysis on the issues at hand to note
that even the FIR in the instant case was got registered/lodged by
the complainant, promptly, the day following the incident. In this
regard, reference is made to the further made to the deposition of
PW-7/SI Raj Kumar, who inter alia asserted before the Ld. Trial
Court that on 15.03.2016, when he was posted as SI at PS Hauz
Quazi, the complainant (Ex. PW1/A) had given a written
complaint at PS at around 12:30 pm; on the basis her complaint of
chest pain, prosecutrix was immediately sent to LNJP Hospital for
her examination; and subsequently, on return of prosecutrix from
the Hospital, rukka was prepared by PW-7, followed with
registration of FIR. The said factum of registration of FIR further
finds credence from the testimonies of PW-3/SI Madan Lal and
PW-6/Ct. Narender Kumar.
34. Consequently, in conspectus of the above and inter
alia keeping in view consistent and ‘sterling’ testimony of the
complainant/victim/prosecutrix/PW-1; the documents placed on
record, including the complainant’s MLC; and the statement(s)/
testimonies of other prosecution witnesses, charges in the instant
case, in the considered opinion of this Court, stand duly proved
against the appellant herein. In fact, from the aforesaid, it is proved
‘beyond reasonable doubt’ that the appellant, on 14.03.2016, at
CA No. 282/2019 Ajay Bhargava v. State & Anr. Page 45 of 47
Digitally signed
ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2025.01.08
15:53:50 +0530
about 6.00 pm at H. No. 1425, Sita Ram Bazar, Delhi, the appellant
knowingly and/or intentionally outraged the modesty of the victim
by use of criminal force on the victim intending to outrage or
knowing it to be likely that he will thereby outrage her modesty
and voluntarily caused hurt (bodily pain) to her, thereby made
himself liable for the offences punishable under Sections 354 and
323 IPC, respectively. Needless to further mention that though it
holds highest regard for the decisions relied upon by the Ld.
Counsel for the appellant in support of his contentions, however,
the same would not come to the aid of the appellant, in the manner
as proposed, as the facts and circumstances of the present case are
clearly distinguishable.
35. Conclusively, in light of the foregoing
explication/discussion, the present appeal deserves to be dismissed
and is hereby dismissed. Accordingly, the judgment dated
08.05.2019, passed by Ld. MM-01, Mahila Court, Central, Tis
Hazari Courts, Delhi in case bearing, “State v. Ajay Bhargava, Crl.
Case No. 289386/2016″, arising out of FIR No. 68/2016, PS Hauz
Qazi, under Sections 323/354 IPC, convicting the appellant for the
offences punishable under Sections 323/354 IPC is hereby upheld.
Let the appellant, namely, Ajay Bhargava be heard on sentence on
30.01.2025.
36. In the meanwhile, issue notice to SHO, Hauz Quazi to
submit antecedents/previous involvements of the appellant. Also,
issue notice to concerned Jail Superintendent to submit conduct
report and nominal roll of the convict, namely, Ajay Bhargava.
Correspondingly, let a copy of this judgment along with the
affidavits filed by the appellant and State, in terms of the decision
of the Hon’ble High Court of Delhi in Karan v. State NCT of
Delhi, Crl. Appeal 352/2020, dated 27.11.2020 (DHC) , be
CA No. 282/2019 Ajay Bhargava v. State & Anr. Page 46 of 47
Digitally signed
by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.01.08
15:53:56 +0530
circulated/sent to DLSA, Central, Tis Hazari Court, to file Victim
Impact Assessment Report, on or before the next date of hearing.
Copy of the present judgment be annexed along with the notice.
Further, a copy of the present judgment be given dasti to the
appellant.
Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.01.08 15:54:00 +0530 Announced in the open Court (Abhishek Goyal)
on 08.01.2025. ASJ-03, Central District,
Tis Hazari Courts, DelhiCA No. 282/2019 Ajay Bhargava v. State & Anr. Page 47 of 47