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Delhi District Court
Khushi Ram vs State on 7 July, 2025
IN THE COURT OF SH. ABHISHEK GOYAL, ADDITIONAL
SESSIONS JUDGE-03, CENTRAL DISTRICT, TIS HAZARI
COURTS, DELHI
CNR No.: DLCT01-001718-2021
CRIMINAL APPEAL No.: 14/2021
KHUSHI RAM,
S/o. Late Shri. Rattan Lal,
R/o. J-57, Kucha Mohattar Khan,
Mori Gate, Kashmere Gate,
New Delhi-110006. ... APPELLANT
VERSUS
STATE (GOVT. OF NCT OF DELHI) ... RESPONDENT
Date of filing : 05.02.2021
Date of institution : 06.02.2021
Date when judgment was reserved : 24.03.2025
Date when judgment is pronounced : 07.07.2025
JUDGMENT
1. The present appeal has been filed under Section 374
of the Code of Criminal Procedure, 1973 ( hereinafter, referred to
as ‘Cr.P.C./Code’) against the judgment dated 24.12.2020
(hereinafter referred to as ‘impugned judgment’), passed by
learned Metropolitan Magistrate (Mahila Court)-03/ Ld. MM
(Mahila Court)-03, Central, Tis Hazari Courts, Delhi ( hereinafter
referred to as the ‘Ld. Trial Court/Ld. MM’) in case bearing
‘State v. Khushi Ram, Cr. Case No. 290823/2016′, arising out of
FIR No. 99/2013, PS. Kashmere Gate, under Sections
354/354A/509/506 of the Indian Penal Code, 1860 (hereinafter
referred to as ‘IPC‘), convicting the appellant for the offences
punishable under Sections 354/354A/509 IPC, and the
consequent order of sentence dated 12.01.2021 (hereinafter
referred to as ‘impugned order’), passed by the Ld. Trial Court,
C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 1 of 65
Digitally signed
by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.07.07
16:12:30 +0530
awarding the appellant; rigorous imprisonment for a period of 02
(two) years along with fine of Rs. 2,000/- (Rupees Two
Thousand only), in default of payment of which fine, to undergo
simple imprisonment for a period of 30 (thirty) days for the
offence under Section 354 IPC; rigorous imprisonment for a
period of 02 (two) years along with fine of Rs. 2,000/- (Rupees
Two Thousand only), in default of payment of which fine, to
undergo simple imprisonment for a period of 30 (thirty) days for
the offence under Section 354A IPC; and rigorous imprisonment
for a period of 02 (two) years for the offence under Section 509
IPC, sentences to run concurrently, besides the appellant was
directed to be entitled to the benefit of the provisions under
Section 428 Cr.P.C. (hereinafter impugned judgment and
impugned order are collectively referred to as the ‘impugned
judgment and order’).
2. Briefly, the case of the prosecution is that on
04.05.2013, the complainant/prosecutrix, Smt. ‘MD1’ (hereinafter
referred to as the ‘complainant/prosecutrix/victim’) reached at
the police station and tendered her written complaint inter alia
asserting that she resided in Delhi along with her four daughters,
whilst working as a domestic help. As per the complainant, her
husband had abandoned her, after marrying someone else ( मे
अपनी चार बच्चियो के साथ रहती हूँ और छोटे मोटे घरे लू काम करके जैसे तैसे
अपना तथा अपनी बच्चियो का पेट पालती हैं और कु छ समय से मेरा घर वाला
श्री **** दूसरी शादी करके कहीं बाहर चला गया है।). The complainant
further asserted under her complaint that the appellant, harassed
her and tried to take advantage of her vulnerable state ( मेरा पड़ोसी
1
Identity of the prosecutrix and that of her relatives and other particular have been deliberately 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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signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.07.07
16:12:35
+0530
खुशी राम ने इस स्थिति का फायदा उठाकर मुझे बहु त परे शान करना शुरु कर दिया
है ). Correspondingly, the complainant proclaimed that the
appellant used to earlier tease her by saying, “I love you” to her,
however, few days prior to said complaint, the appellant called
her/the complainant to his house ( यू तो यह खुशी राम पहले से ही मुझे
आई लव यू का जूमला बोलकर मुझे छे ड़ता रहता था और मैं संकोच वश खमोशी से
इसकी बदतमीजी बेहु दगी मन मार कर सहन करती रहती थी किन्तु कु छ दिन पहले
इस खुशी राम ने मुझे आवाज देकर अपने घर बुलाया). At that point in time,
as per the complainant, the appellant was taking a bath as well as,
was alone at his home (उस समय वह नहा रहा था और घर मे अके ला था
जिसका मुझे मालूम न था). The complainant further asserted that she
thought that the appellant had called her for some work,
whereupon, she went to the appellant’s house ( उसके बुलाने पर यह
सोंचकर कि कोई काम होगा उसके घर चली गई). However, the complainant
avowed that the appellant showed his private parts to her, at that
point in time, barefacedly giggled and utter, “I love you” and
“..ab tere ghar wala bhi tujhe chor kar chala gaya, tere din raat
kaise kat-te honge, mujhse shaadi kar le…”, to the complainant
(तब उसने नहाते हु ए अपना लिंग मुझे दिखाया, बेशर्मी से हँसा और आई लव यू
कहा और कहा कि अब तो तेरा घर वाला भी तुझे छोड़कर चला गया, तेरे दिन रात
कै से कटते होंगे ). Upon this, as per the complainant, the appellant
pressed her breast. However, as per the complainant, considering
that she was mother to four daughters and alone, she returned to
her home, without informing anyone of the same. As per the
complainant, the said incident was around the festival of Holi.
Thereafter, whenever the appellant used to meet the complainant,
as per the complainant, he used to tell the complainant that he
was chowdhary (important person) of the area and that nothing
transpired in the area, without his consent. Correspondingly, the
C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 3 of 65
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signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.07.07
16:12:39
+0530
appellant is proclaimed to have told the complainant that no one
would come to her rescue, even if she complained. On the
contrary, the appellant told the complainant that agitating her
concerns, would lead the complainant into further trouble. The
said complaint further chronicles that the appellant showed one
card to the complainant and told her that the said card belonged
to some influential Advocate and that the appellant was
acquainted with all the Advocate, consequently, the complainant
could do no harm to him. Ergo, as per the complainant, she
continued to endure harassment in the hand of the appellant.
However, the situations got grim, when the complainant was
informed by her 10 (ten) years old daughter that the appellant
used to also say, “I love you” to her and used to inappropriately
touch her, declaring that he/the appellant would marry her when
she grew up (मेरी आत्मा चीखने लगी जब मेरी बच्चियो मे से एक किरण उम्र
10 वर्ष जो पाँचवी कक्षा मे पढ़ती है ने मुझे बताया कि खुशी राम अंकल जी ने उसे
(किरण) को भी आई लव यू, आई लव यू, कहता है, उसे अपने शरीर से चीपकाता है,
पेशाब करने की जगह हाथ लगाता है कि जल्दी जल्दी बड़ी हो जा तुझसे शादी
करूं गा।). Ergo, under such facts and circumstances, the instant
FIR was registered, and investigation ensued.
2.1. Notably, during the course of investigation,
statements of the complainant and that of her minor daughter
were got recorded, in terms of the provisions under Section 164
Cr.P.C. Consequently, considering the statement of the
complainant’s daughter under Section 164 Cr.P.C., her age as
well as in light of the allegations leveled by the complainant and
her daughter, separate FIR bearing No. 115/2013, dated
16.05.2013, under Sections 354/354A/354B/509 IPC and
Sections 8/12 of Protection of Children from Sexual OffencesC.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 4 of 65
Digitally signed
by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.07.07
16:12:47 +0530
Act, 2012 (hereinafter referred to as the ‘POCSO Act‘), PS.
Kashmere Gate, Delhi was registered against the appellant
herein. Thereupon, on conclusion of investigation in the said
case, chargesheet was filed before the court of Ld. ASJ, Special
Judge, Tis Hazari Court, Delhi. Consequently, pursuant to further
investigation, the appellant was arrested in the present case,
recovery was effected at the behest of the appellant, TIP
proceedings qua the recovered/case property was conducted and
the statements of various witnesses were recorded. Consequently,
upon conclusion of the investigation in the present case,
chargesheet was prepared as well as filed before the Ld. MM.
Pertinent for the purpose(s) of the present discourse to reproduce
the relevant extracts from the statement of the complainant,
‘MD’ recorded under Section 164 Cr.P.C. on 06.05.2013, as
under;
“…Khushi Ram, होली के कु छ दिन बाद अपने घर
पर नहा रहा था। घर पर कोई नहीं था। मुझे आवाज़ देकर
बुलाया। जब हमने उससे पूछा कि क्या काम है।तो उसने
मुझे अपने पास आने के लिए कहा। फिर उसने अपना
कच्छा उठाकर अपना सामान (Toilet वाली जगह)
दिखाया। फिर उसने मुझे एक वकील का कार्ड दिखाया और
कहा कि ‘मेरे वकील ने मुझे इस इलाके का प्रधान बना
दिया है। मैं यहाँ का चौधरी हूँ, मेरा कोई कु छ नहीं बिगाड़
सकता।
जब भी मैं आती-जाती हूँ, वह मुझे I Love you
बोलता रहता है। वह कहता है कि तेरा आदमी तो चला
गाया है, मुझसे शादी कर ले। वह मुझे धमकी देता रहता
कि वह मुझे मोहल्ले से निकाल देगा । गन्दे -2 इलज़ाम
लगाता रहता है। कोई रिश्तेदार भी आता है, तो कहता है
तेरा और तेरी बेटियों का यार आया है । वह धमकी देता है
कि मेरे खिलाफ Complaint करे गा कि मैं गन्दी औरत हूँ।
होली के कु छ दिन बाद (2-4 दिन बाद) उसने मुझे कहा
कि मुझसे शादी कर ले। उसने मेरा दोनों छाती दबा दिया ।
उसने नहाते समय मुझे अपना Toilet wali जगह भी
दिखाया। वह हमेशा मुझे धमकी देता रहता है कि वह मुझे
बदनाम कर देगा । उसने मेरा और मेरी बेटियों का जीना
मुश्किल कर रखाह है। मैं अब तक चुप रही। लेकिन अब
उसने मेरी बेटी K**** को भी तंग करना शुरु कर दिया ।
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मेरी बेटी ने बताया कि वह जब भी जाती है। वह उसे I
Love you कहता है। तथा अपनी बायरुम वाली जगह पर
हाथ लगवाता है और उसकी बामरूम वाली जगह पर भी
हाथ लगाता है। फिर मैं थाने गई और के स दर्ज
कराया।…”
(Emphasis supplied)
2.2. Notably, upon such chargesheet being filed, Ld.
Trial Court took cognizance of offence, specified therein vide
order dated 25.10.2013 and summons were issued qua the
appellant. Subsequently, upon the appellant’s entering
appearance before the Ld. Trial Court and upon compliance of
the provisions under Section 207 Cr.P.C., arguments on the
aspect of charge were addressed by/on behalf of the appellant as
well as by Ld. Addl. PP for State. Consequently, the Ld. Trial
Court vide its order dated 15.05.2014, directed framing of
charges under Sections 354/354A/509/506 IPC against the
appellant herein inter alia under the following observations;
“…It is well settled that at the stage of framing of
charge, the court is not expected to go deep into the
probative value of the material on record. If on the
basis of material on record, the court could come to
the conclusion that the accused would have
committed the offence, the court is obliged to frame
the charge and proceed with trial. Our own Hon’ble
High Court in case titled as Sapna Ahuja V State
1999 (5) AD Delhi 407 has observed that at the time
of framing of charge FIR and the material collected
by the investigation agency cannot be sieved through
the call ender of the finest gauzes to test its veracity.
A roving inquiry into the pros and cons of the case
by weighing the evidence is not expected or
warranted at the stage of framing charge.
In the present case, perusal of charge sheet,
statement of witnesses recorded u/s 161 Cr.PC and
other material available on record shows prima facie
case against the accused for the offfence charged.
Hence charges have been framed against accused to
which he pleaded not guilty and claimed trial.
Put up on 25.8.2014 for PE…”
(Emphasis supplied)
C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 6 of 65
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by ABHISHEK
ABHISHEK GOYAL
Date:
GOYAL 2025.07.07
16:12:56
+0530
2.3. Pertinent here to further reproduce the charges,
consequently, framed against the appellant by the Ld. Trial Court
on 15.05.2014, as under;
“…I, ***, MM, Delhi, hereby charge you Khushi
Ram, S/o. Late Sh. Rattan Lal as under:-
Firstly, that during the period of 28.03.2013 to
04.05.2013 at H No. J-76, Kuchha, Mohttar Kihan,
Mori Gate, Delhi within jurisdiction of police station
Kashmere Gate, you assaulted or used criminal force
to the complainant Ms. M**** D*** with intention
to outrage her modesty by such assault or criminal
force and thereby committed an offence under
section 354 IPC within my cognizance.
Secondly, that during the period of 28.03.2013 to
04.05.2013 at H No. J-76, Kuchha, Mohttar Kihan,
Mori Gate, Delhi within jurisdiction of police station
Kashmere Gate, you established physical contact and
advances involving unwelcome and explicit sexual
overture by forcibly holding the hand of complainant
Ms. M**** D*** and thereby committed an offence
under section 354-A IPC within my cognizance.
Thirdly on various occasions at unknown date,
time and place you uttered insulting words to the
complainant with intention to insult her modesty and
thereby committed the offense u/s. 509 IPC within
my congnizance.
Fourthly on the above said date, time and place
and on various occasions including on 28.03.2013 at
unknown date, time and place you criminally
intimidated the complainant and thereby committed
an offence punishable u/s 506 IPC within my
cognizance.
I hereby direct that you be tried on the said
charges…”
(Emphasis supplied)
2.4. Markedly, the appellant pleaded not guilty to the
aforesaid charges and claimed trial. Relevantly, during the course
of trial, prosecution examined 07 (seven) witnesses , i.e.,
PW-1/Smt. ‘MD’; PW-2/W/Ct. Jyoti; PW-3/Ct. Jitendra
Bharadwaj; PW-4/SI Dhan Singh; PW-5/HC Kamlesh Kumar;
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PW-6/HC Subhash; and PW-7/IO/Insp. Veena. Apposite to note
that during the course of trial, the appellant admitted FIR as Ex.
AD-1; TIP proceedings of case property as Ex. AD-2, conducted
by Sh. Arvind Bansal, Ld. MM; and statement of Smt. ‘MD’,
under Section 164 Cr.P.C. as Ex. PW4/D, in terms of the
provisions under Section 294 Cr.P.C. on 10.12.2018, leading to
the Ld. Trial Court, dispensing with the examination of the
corresponding witnesses. Subsequently, on conclusion of
prosecution evidence, recording of statement of the appellant
under Section 281/313 Cr.P.C. on 20.12.2018, as well as on the
appellant’s leading defence evidence/Defence witnesses , i.e.,
DW-1/Smt. Sharda and DW-2/Ms. Anita; as well as on
conclusion of arguments on behalf of the appellant and the State,
as aforementioned, the Ld. Trial Court vide impugned judgment
and order, convicted and sentenced the appellant in the manner,
as hereinunder noted.
3. Ld. Counsel for the appellant outrightly 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 suffering with gross illegality. In this regard, Ld.
Counsel further submitted that the impugned judgment and order
were passed by the Ld. Trial Court on mere assumptions and that
no sound and cogent reasons have been assigned under the
impugned judgment and order, besides the fact that the Ld. Trial
Court failed to appreciate the contents of the complaint,
examination-in-chief as well as the cross examination of the
complainant in its correct perspective. In this regard, Ld. Counsel
further submitted that while passing the impugned judgment, Ld.
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ABHISHEK GOYAL
Date:
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Trial Court failed to consider that the incident of misbehavior,
allegedly commenced from 28.03.2013 and ended on 04.05.2013,
despite which, no reason was given in the complaint lodged
before the concerned Police Station as to why no specific date
and time of misbehavior was specified under the said complaint,
besides no explanation for having not made any complaint by the
complainant in her said complaint is forthcoming from the
material placed on record. It was further submitted by the Ld.
Counsel that the complainant even failed to disclose the name of
the police officials who allegedly refused to lodge FIR. As per
the Ld. Counsel, the perusal of the records in the proceedings
before Ld. ASJ, emanating from case FIR No. 115/13, the
complainant failed to appear before the Police authorities for
giving her statement, as specified under orders dated 22.04.2014,
15.07.2014, 26.08.2014, 23.09.2014, 13.03.2014, 11.08.2014,
13.01.2015, 24.02.2015, 09.04.2015, 30.04.2015 and 13.05.2015
of the Ld. ASJ. However, despite the same, as per the Ld.
Counsel, the Ld. Trial Court wrongly held the appellant guilty of
the aforenoted offences and erroneously convicted him on the
vague and unspecific allegations. It was further strenuously
contended by the Ld. Counsel that the Ld. Trial Court even failed
to appreciate that three versions of the marital status of the
complainant have been brought on record , i.e., under the written
complaint dated 04.05.2013, the complainant proclaimed herself
to be the wife of one, Shri Raj Kumar and asserted that she had
four daughters, besides her said husband left her and married
someone else. However, Ld. Counsel submitted that in the
statement recorded in terms of the provisions under Section 164
Cr.P.C., the complainant avowed that her husband took away,
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ABHISHEK GOYAL
GOYAL Date:
2025.07.07
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both his sons on the occasion of Holi and left her with four
daughters. As per the Ld. Counsel, the complainant further
improved her version, while initially asserting under her cross
examination that she had seven children and that she was initially
married with one Raghubir, out of which wedlock, three children
were born and that remaining four children were born out of her
wedlock with Raj Kumar. Nonetheless, the complainant further
asserted that the name of her husband was Suresh, which
discrepancies, contractions, variations, as per the Ld. Counsel,
were not given due weightage by the Ld. Trial Court, while
passing the impugned judgment.
3.1. Ld. Counsel for the appellant further submitted that
the impugned judgment is based on conjectures and surmises, in
as much as the Ld. Trial Court, failed to appreciate the evidence
led by the parties and also the documents on record. In this
regard, Ld. Counsel argued that the version of marriage and
complainant’s husband name, do not find corroboration from the
material placed on record, in particular from the voter’s ID (Ex.
PW1/D1) of the complainant, which shows the name of
complainant’s husband as Raj Kumar. Ld. Counsel further
submitted that in her cross examination, the complainant asserted
that her husband’s name was Suresh and that at the time of filing
of the case, Raj Kumar was her husband and that 15-20 days he
left her, she married Suresh, without taking divorce from
previous husband. In this regard, Ld. Counsel further asserted
that even the records pertaining to FIR No. 115/2013, would
clearly demonstrate that the complainant was repeatedly giving
false statements regarding her marital status and children. Even
otherwise, as per the Ld. Counsel, while passing the impugned
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ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.07.07
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judgment of appellant’s conviction, Ld. Trial Court failed to
appreciate that the instant case was registered with revengeful
and hostile attitude of the complainant towards the appellant,
who had raised objections to the visits of Suresh at the
complainant’s house in the absence of her husband. Ld. Counsel
vehemently asserted that the Ld. Trial Court, while reaching the
conclusion of appellant’s guilt was oblivious to the fact that the
complainant, initially got FIR No. 99/2013/present FIR registered
on the basis of written complaint dated 04.05.2013, however,
subsequently, the complainant got registered FIR No. 115/2013
on same allegations of alleged misbehavior of the appellant with
the complainant’s daughter. As per the Ld. Counsel, despite the
order of acquittal, passed by Ld. ASJ in the proceedings
emanating from the said FIR/FIR No. 115/2013, Ld. Trial Court
did not even mention of the said fact under the impugned
judgment. As per the Ld. Counsel, the Ld. Trial Court did not
apply its mind while passing the impugned judgment and
completely ignored the different versions put forth by the
complainant in her complaint and that in her statement, recorded
under Section 164 Cr.P.C. Even otherwise, as per the Ld.
Counsel, the Ld. Trial Court failed to consider that it was highly
improbable/unbelievable that the appellant would commit any
wrongdoing in the presence of his wife and children. In fact, it
was submitted that the complainant’s testimony does not inspire
confidence, and it is quite possible that the appellant was falsely
implicated in the present case as he used to object against the
illegal visit of Suresh at the residence of the complainant, in the
absence of her husband.
3.2. Ld. Counsel for the appellant further
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ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
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reiterated/submitted that the Ld. Trial Court did not consider that
the allegations levelled by the complainant were extremely vague
and general, where she inter alia asserted that after the alleged
incident, the appellant approached her and threatened that he was
related to an Advocate, and no one could do any harm against
him. In this regard, Ld. Counsel asserted that the Ld. Trial Court
completely overlooked that no such card was placed on record by
the prosecution and all the averments made against the appellant
were false, imaginary and concocted. It was further strenuously
argued that the Ld. Trial Court failed to appreciate that there was
a huge delay in the registration of FIR against the appellant
regarding the alleged misbehavior incidents commencing from
28.03.2013, where such FIR came to be registered only on
04.05.2013. As per the Ld. Counsel, even the
statements/testimonies of other prosecution witnesses are not
reliable, besides no proper and fair investigation was conducted
by the police officials in the present case. In this regard, Ld.
Counsel asserted that PW-2/Ct. Jyoti failed to give the name of
two ladies Advocate, who allegedly accompanied the
complainant to the police station on 04.05.2013. Further,
PW-3/HC Jitender Bhardwaj in his cross examination, admitted
that at the time of recovery of case property no public persons
were present, which is highly unbelievable as the house of the
appellant was situated in a crowded area of Mori Gate.
Correspondingly, as per the Ld. Counsel, PW-4/Dhan Singh
asserted that he did not remember if any PCR call was made by
the complainant and he admitted that there were several passers-
by and neighbours on 04.05.2013, despite which, no other public
persons/no one other than the complainant had been joined in the
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present case, as witnesses. Concomitantly, Ld. Counsel submitted
that the statement of PW-7/Veena Kumar is unreliable and does
not support the version put forth by the prosecution. Ld. Counsel
further submitted that even the defence and the material placed
on record by the appellant were not accorded due weightage by
the Ld. Trial Court, while erroneously reaching the finding of
guilt of the appellant. Accordingly, Ld. Counsel vehemently
asserted that the Ld. Trial Court failed to apply its judicial mind
in a fair and proper manner and passed the impugned judgement
in a whimsical manner. Even otherwise, it was submitted by the
Ld. Counsel that the order of sentence was also passed by the Ld.
Trial Court, impulsively, while failing to appreciate that the
accused was of young age at the relevant point in time, as well as
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 for the
appellant further vehemently argued that the punishment/penalty
must not be retributive in nature, rather, humanizing, considering
that sentencing an accused with severe sentence would subject
his 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
accused, serious/severe repercussions may ensue to his physical
and mental well-being. Consequently, the Ld. Counsel for the
accused inter alia prayed that the present appeal be allowed, and
the impugned judgment and order be set aside. In support of the
said contentions, reliance was placed upon the decisions in;
Narender Kumar v. State (NCT of Delhi), Crl. Appeal No. 2066-
67/2009, dated 25.05.2012 (SC); TT Antony v. State of Kerala,
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AIR 2001 SC 2637; Amitbhai Anilchandra Shah v. CBI, (2013) 6
SCC 348; Babubhai v. State of Gujarat & Ors., 2010 (12) SCC
254; Rai Sandeep @ Deepu v. State (NCT of Delhi), Crl. Appeal
No. 2486/2009, dated 07.08.2012 (SC); Pandurang Sitaram
Bhgwat v State, Crl. Appeal No. 1513/2004, dated 17.12.2004
(SC); Javed Shaukat Ali Qureshi v. State of Gujarat, Crl. Appeal
No. 1012/2022, dated 13.09.2023 (SC); Ravinder v. State, Crl.
Appeal No. 552/2020, dated 05.01.2022 (DHC); and Dr.
Karunakar Patra v. State, WP (Crl.) 502/2021, dated 24.01.2022
(DHC).
4. Per contra, Ld. Addl. PP for the State submitted that
the impugned judgment and order was 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. It was further submitted by the Ld. Addl. PP for the
State that the appellant has even failed to prove its defence before
the Ld. Trial Court. Concomitantly, it was submitted by the Ld.
Addl. PP for the State, even otherwise, the contention of/on
behalf of the appellant regarding the complainant’s conduct and
character are afterthought and have been raised by the appellant
solely to prejudice the prosecution case, without there being any
iota of truth behind the same. Lastly, it was submitted by the Ld.
Addl. PP for the State that no ground of any indulgence or
relaxation in either the impugned judgment or even in the order
of sentence/impugned order, passed against the appellant are
established, convincing this Court to grant any relaxation in
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favour of the appellant.
4.1. Ld. Counsel for the complainant, while
supplementing the arguments of Ld. Addl. PP for the State
submitted that the allegation against the accused is grave in
nature pertaining to woman’s safety, which ought to be dealt with
strictly. Ld. Counsel further submitted that the complainant is an
illiterate woman, belonging to a socially and economically
deprived section of society and after her husband’s leaving her,
she was in extreme distress, leading to delayed reporting of the
incident. In this regard, Ld. Counsel vehemently argued that the
complainant explained the reason why she had chosen to keep
quiet against the appellant, which cannot be read against the
prosecutrix in the instant case. It was further submitted by the Ld.
Counsel that the complainant has been consistent in her
deposition and gave a clear as well as detailed description of the
alleged incidents, whereupon it is clear that soon upon the
complainant’s husband leaving her, the appellant tried to take
advantage of her helplessness, while subjecting her to physical
and mental distress. Ld. Counsel further submitted that there is
no inconsistency in the complainant’s statement made before the
police officials, that made before the Ld. MM under Section 164
Cr.P.C. or in her examination in chief or cross examination
before the Ld. Trial Court. In this regard, Ld. Counsel further
contended that in the counselling report, the counsellor did not
find any reason to disbelieve or suspect on complainant’s
statement, besides the complainant duly/correctly identified the
case property, which was seized by the police. It was further
submitted that the defence tendered no explanation for the
allegation. Even the witnesses produced by/on behalf of the
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appellant have no relationship or knowledge of the alleged
incident. In this regard, Ld. Counsel further submitted that both
the defence witnesses did not reside in the same locality as that
of the appellant and complainant, rather, on different street.
Correspondingly, as per the Ld. Counsel, it is not the case of the
complainant that at the time of commission of the offence, wife
or mother of the appellant were not present in the house, making
the defence grossly misleading. Further, as per the Ld. Counsel,
acquittal of the appellant in POCSO case/FIR No. 115/2013 has
no bearing on the instant case as both the proceedings are
separate, besides the allegations as well as applicable laws in the
said cases are different. Ld. Counsel further reiterated that the
Ld. Trial Court correctly applied its judicial mind and held the
appellant/accused guilty, under the impugned judgment,
deserving no indulgence/interference by this Court.
5. The arguments of the Ld. Counsel for the appellant,
Ld. Addl. PP for the State as well as that of Ld. Counsel for the
complainant have been heard and the record(s), including the
Trial Court Record, written submissions/arguments filed by the
parties as well as the case laws relied, thoroughly perused.
6. At the outset, this Court deems it apposite to
enunciate the scope of jurisdiction of this Court in an appeal
against conviction. In this regard, this Court deems it pertinent to
outrightly make a reference to the decision of the Hon’ble
Supreme Court2 in Atley v. State of U.P., 1955 SCC OnLine SC
51, wherein the Hon’ble Court, while delving into the ‘ scope and
ambit’ of appellate court’s jurisdiction, against an appeal against
acquittal or an appeal against conviction, inter alia noted as
2
Reference further made to; Padam Singh v. State of U.P., (2000) 1 SCC 621.
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“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)
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 against conviction
extends to reappreciation of the entire material placed on record
of the trial court and to arrive at an independent conclusion as to
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whether the said evidence can be relied upon or not. In fact, as
aforenoted, court(s), while exercising its appellate jurisdiction, is
not only 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 law 3 that non-re-
appreciation of the evidence on record in an appeal may affect
the case of either the prosecution or even an accused. Needless to
reemphasize that an 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 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, this Court deems it pertinent
here to reproduce the relevant provisions under law/IPC, for the
purpose of present adjudication, as under;
“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.
354A. Sexual harassment and punishment for
sexual harassment-(1) A man committing any of the
following acts-
(i) physical contact and advances involving
unwelcome and explicit sexual overtures; or
(ii) a demand or request for sexual favours; or
(iii) showing pornography against the will of a
woman; or
(iv) making sexually coloured remarks, shall be
guilty of the offence of sexual harassment.
3
State of Gujarat v. Bhalchandra Laxmishankar Dave, (2021) 2 SCC 735.
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(2) Any man who commits the offence specified
in clause (i) or clause (ii) or clause (iii) of sub-section
(1) shall be punished with rigorous imprisonment for
a term which may extend to three years, or with fine,
or with both.
(3) Any man who commits the offence specified
in clause (iv) of sub-section (1) shall be punished
with imprisonment of either description for a term
which may extend to one year, or with fine, or with
both.
*** *** ***
509. Word, gesture or act intended to insult the
modesty of a woman-Whoever, intending to insult
the modesty of any woman, utters any word, makes
any sound or gesture, or exhibits any object,
intending that such word or sound shall be heard, or
that such gesture or object shall be seen, by such
woman, or intrudes upon the privacy of such woman,
shall be punished with simple imprisonment for a
term which may extend to three years, and also with
fine”
(Emphasis supplied)
10. Notably, it is observed from a perusal of the
provisions, in particular, that of the provisions under Section
354A IPC that the said provision provides for criminality against
any man who engages in unwelcome physical contact and
advances explicit sexual behavior, demands sexual favors, shows
pornography against a woman’s will, or makes sexually colored
remarks. Apposite for the purpose(s) of present discourse to
further make a reference to the provisions under Section 354 IPC,
which provides for criminality in case of assault or criminal force
to a woman with an intent to outrage her modesty. Relevantly, in
order to attract the said provision/Section 354 IPC, it is required
from the prosecution to prove; (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)
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(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 Court4, 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 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)
11. Analogously, the Hon’ble Supreme Court in Raju
Pandurang Mahale v. State of Maharashtra & Ors.,
MANU/SC/0116/2004, while inter alia cogitating on 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
4
Premiya v. State of Rajasthan, (2008) 10 SCC 81.
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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 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)
12. Reference in respect of the foregoing is further made
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, whist confronted with the issue, ‘ whether a female child
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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)
13. 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. Here, this Court further deems
it pertinent to make a reference to the decision of the Hon’ble
High Court of Delhi5 in T. Manikadan v. State (Govt of NCT of
Delhi) & Anr., Crl. Rev. Pet. No. 404/2016, dated 10.01.2017,
wherein the Hon’ble Court, while inter alia explicating the
ingredients of offences under Section 354 and 354A IPC and the
difference between the said provisions, noted as under;
5
Amit @ Lalu v. State, Crl. Appeal No. 858/2016, dated 25.05.2017 (DHC).
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"9. Thus when the modesty of a woman is
outraged or it is likely to be outraged coupled with an
assault or criminal force, Section 354 IPC would be
attracted. Though assault can be by mere gesture or
preparation intending or knowing that it is likely that
such gesture or preparation will cause any person
present to apprehend use of criminal force. This is an
act more than mere physical contact with advances
involving unwelcome and explicit sexual overtures.
Ingredients of Section 354 IPC would show that the
same mandate an actus reas of assault or criminal
force with an intention to outrage or likely to outrage
the modesty whereas a mere physical contact with
advances as noted above would attract Section 354A
IPC. Though in certain fact situations there may be
cases where there may be an overlap of both Sections
354 and 354A IPC however, there may be cases
which may exclusively fall either in Section 354 or
Section 354A IPC. Once an offence falls under
Section 354 IPC even if ingredients of Section 354A
IPC are satisfied, the accused will be punished for
Section 354 IPC the same being more serious in
nature as it prescribes the minimum sentence of one
year and term for imprisonment which may extend to
five years.”
(Emphasis supplied)
14. In as much as the applicability/culpability under
Section 509 IPC in a given case is concerned, prosecution is inter
alia required to prove, ‘(i) intention on the part of an accused to
insult the modesty of a woman; and that the (ii) insult must be
caused by; (a) uttering any words, or making any sound or
gesture, or exhibiting any object intending that such word or
sound shall be heard or that the gesture or object shall be seen by
such woman, or (b) by intruding upon the privacy of such a
woman’. Reference in respect of the foregoing is outrightly made
to the decision in Varun Bhatia v. State & Ors.,
MANU/DE/5747/2023, wherein the Hon’ble High Court of
Delhi, while explicating the contours of the provisions under
Section 509 IPC, noted as under;
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“18. Section 509 of the Indian Penal Code
delineates two pivotal components for establishing an
offence: firstly, the presence of an intention to insult
the modesty of a woman, and secondly, the manner
in which this insult is perpetrated. The cornerstone of
this provision is the requirement of intent, where the
accused must possess a deliberate intention to affront
or insult the modesty of a woman. This intent sets
apart ordinary speech or actions from those that
amount to an offence under Section 509. The insult
itself can take place through two distinct modes. It
can occur verbally or visually by uttering specific
words, making sounds, or displaying gestures or
objects, with the deliberate intent that these words,
sounds, gestures, or objects are heard or seen by the
woman involved. Alternatively, insult can manifest
as an intrusion upon the woman’s privacy, meaning
thereby encroaching upon her personal space or
violating her sense of privacy intentionally, in a
manner that affronts her modesty. In essence, Section
509 emphasizes that intent is the linchpin of this
offence, necessitating a deliberate affront to a
woman’s modesty for the Section to be invoked.
*** *** ***
21. In essence, both Section 354 and Section 509
of Indian Penal Code addressed the issue of
outraging the modesty of a woman, but they do so in
distinct ways. Section 354 primarily deals with cases
involving physical assault or the use of force against
a woman, wherein her modesty is violated through
actions that involve direct contact or physical harm.
On the other hand, Section 509 concerns instances
where words, gestures, or acts are employed with the
deliberate intent to insult or offend a woman’s
modesty, without necessarily involving physical
force. This distinction in legal provisions reflects the
recognition that outraging a woman’s modesty can
take various forms, both physical and verbal, and the
law seeks to address each of these forms distinctly to
ensure justice and protection for women in different
situations. In the present case, the complainant has
raised allegations solely under Section 509 of the
Indian Penal Code against the accused.”
(Emphasis supplied)
15. Here, it is further apposite to note that the superior
courts have persistently avowed that in order for the provisions
under Section 509 IPC to be invoked, merely insulting a woman
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is not sufficient, rather, insult to the modesty of a woman is an
essential ingredient of the said provision. In this regard, the
Hon’ble High Court of Kerala in Abhijeet J.K. v. State of Kerala
& Ors., MANU/KE/0617/2020, in unambiguous terms, noted as
under;
“8. Section 509 of the Indian Penal Code provides
that, whoever, intending to insult the modesty of any
woman, utters any word, makes any sound or
gesture, or exhibits any object, intending that such
word or sound shall be heard, or that such gesture or
object shall be seen, by such woman, or intrudes
upon the privacy of such woman, shall be punished
with simple imprisonment for a term which may
extend to three years, and also with fine.
9. Utterance of any word or making of any sound
or gesture by a person, intending to insult the
modesty of a woman, attracts the offence punishable
under Section 509 I.P.C., if such act was made
intending that such word or sound shall be heard, or
that such gesture shall be seen by such woman.
10. There is distinction between an act of merely
insulting a woman and an act of insulting the
modesty of a woman. In order to attract Section 509
I.P.C., merely insulting a woman is not sufficient.
Insult to the modesty of a woman is an essential
ingredient of an offence punishable under Section
509 I.P.C. The crux of the offence is the intention to
insult the modesty of a woman.
11. Section 509 I.P.C. criminalises a ‘word,
gesture or act intended to insult the modesty of a
woman’ and in order to establish this offence it is
necessary to show that the modesty of a particular
woman or a readily identifiable group of women has
been insulted by a spoken word, gesture or physical
act (See Khushboo v. Kanniammal,
MANU/SC/0310/2010: AIR 2010 SC 3196).”
(Emphasis supplied)
16. Quite evidently, for a prosecution under Section
509 IPC to sustain, it is imperative that there are definite
allegations of insult to the modesty of woman or intrusion into
her privacy and that merely insulting a woman is different from
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insulting the modesty of woman. Clearly, in the former case, the
allegations would fall short to even make a prima facie case for
the offence under Section 509 IPC. Reference, in this regard is
made to the decision of the Hon’ble High Court of Kerala in
Basheer v. State of Kerala, Crl.MC.No. 837 of 2010, dated
24.03.2016, wherein the Hon’ble Court, while quashing a
proceeding under Section 509 IPC, remarked as under;
“3. The learned Magistrate, and also the learned
Sessions Judge erred in law to find that this
prosecution can proceed under Section 509 IPC.
Mere insult will not attract Section 509 IPC. For a
prosecution under Section 509 IPC there must be a
definite allegation of insult to the modesty of woman
or intrusion into the privacy of woman. Thus the
allegation must involve modesty of woman or
privacy of woman. Mere insult or false allegation
will not attract a prosecution under Section 509 IPC.
In Annexure A2 complaint the 2nd respondent does
not have a case that the petitioners herein had
insulted her modesty as a woman, or that they had
intruded into her privacy in any manner. If at all the
petitioners had spread or published any insulting and
defamatory matters, she can initiate prosecution for
defamation under Section 500 IPC, provided, the
allegations would come under the definition of
defamation under Section 499 IPC. Any way mere
insult or insulting words, or abuse will not attract a
prosecution under Section 509 IPC. In this case there
is absolutely nothing in the complaint preferred by
the 2nd respondent, or in the final report submitted
by the police to indicate that the petitioners had in
any manner insulted her modesty or intruded into her
privacy. Merely insulting a woman is different from
insulting the modesty of woman. The subject of
insult for a prosecution under Section 509 IPC must
be the modesty of woman and not the woman as
such. When there is nothing to make out the essential
elements of the offence under Section 509 IPC, the
prosecution against the petitioners cannot proceed
under the law. I find that the present prosecution is
an abuse of legal and judicial process. If at all the 2 nd
respondent has a grievance or complaint that the
petitioners herein had made or published any
defamatory material against her alleging
misappropriation of amount, she will have to pursue
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signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.07.07
16:14:43
+0530
appropriate remedy, if at all such allegations would
constitute the offence of defamation. The present
prosecution cannot proceed because the complaint
does not contain the essential elements or ingredients
of the offence under Section 509 IPC.”
(Emphasis supplied)
17. Ergo, in light of the foregoing understanding, this
Court would now proceed with the evaluation of the material
placed on record, in particular, the testimonies of various
witnesses before the Ld. Trial Court. In this regard, this Court
deems it pertinent to outrightly make reference to the deposition
of the complainant/PW-1/’MD’, who inter alia asserted in her
deposition that in the year, 2013, in the days, around the festival
of Holi, her/PW-1’s husband had left her and got married with
another lady, leaving the complainant with four children. PW-1
further deposed that her husband had abandoned her prior to Holi
festival and that whenever she came out of her house for the
purpose of her work, the appellant, who was her neighbor and
correctly identified by PW-1 before the Ld. Trial Court, used to
comment, “M****, I Love You, ab toh tera pati chor kar chala
gaya ab tera raat din kaise katega”. PW-1 further deposed that
she objected to the same, however, the appellant smiled and
replied, “kuch nahi hota”. Correspondingly, as per the
complainant, she moved from the spot as she did not want any
issue at that time, however, 02-03 days after her objection, the
appellant, called her/PW-1 to his house. PW-1 further avowed
that when she entered the appellant’s house, after listening to
his/appellant’s voice, with a view that he may be in need of
something and being a neighbor, she/PW-1 found that the
appellant was taking a bath. It was further deposed by PW-1 that
she enquired the appellant, reason for calling her, however, the
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by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.07.07
16:14:47 +0530
appellant, instead of replying to her, showed his private organ to
her/PW-1. Thereafter, as per PW-1, the appellant rushed towards
her and pressed her breast, as well as asked her to get married
with him as she was alone. Concomitantly, as per PW-1, the
appellant threatened her by saying, “agar shadi nahi karegi toh
bahut kuch ho jayega”. PW-1 further asserted that she was a
resident of Bihar and got afraid because of the incident, as she
know that no one would support her, after listening of the
incident. Markedly, in her deposition, PW-1 further avowed that
04-05 days thereafter, the appellant again approached her and
showed a card to her asserting that the said card was related to an
Advocate and that no one could harm him, as he had also become
an Advocate. PW-1 asserted that she continued to remain
silent/quiet on the incident as she was alone, however, 05-06
days thereafter, her/PW-1’s daughter, namely, ‘K’ approached
her and said, “mummy, khushiram chacha ne mujhe I love you
bola tha”. As per PW-1, when she asked her daughter that what
had happened with her, she stated, “wo muje jism se chipkata hai
or i love you bolta hai aur muje godi me baithakar apni pant ki
chain khol leta hai or bolta hai ki uski susu wali jas jaghah pakad
ke dekh”. As per PW-1, she was informed by her said daughter
that the appellant had touched her/’K’s’ private part too.
Thereupon, PW-1 asserted that she decided, not to tolerate any
further and got her complaint registered, However, since the
police is asserted to have not taken any action on her/PW-1’s
complaint, she approached an Advocate, who typed PW-1’s
complaint (Ex. PW1/A, bearing PW-1’s signatures at point A) to
the SHO and she, forwarded the same, leading to the registration
of the present FIR. PW-1 also deposed that after lodging the
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ABHISHEK GOYAL
GOYAL Date:
2025.07.07
16:14:50 +0530
complaint against the appellant, his/appellant’s mother as well as
wife made her/PW-1’s life miserable as they were well known
resident of the locality and she/PW-1 was an outsider, who had
shifted from Bihar. PW-1 further correctly identified the case
property (Ex. P1), being brown colour underwear, before the Ld.
Trial Court.
18. Markedly, upon being cross-examined, by/on behalf
of the appellant, PW-1 asserted as under;
“XXXXXX by Sh. ***, Ld. Counsel for accused.
I am 37 years old. I have 07 children namely
A****, B****, R*****, K*****, N****, R*****
and K******. I was firstly marriage with Raghuvir,
S/o Sh. Bengali, R/village Jha Jha but I do not
remember the district and from the said wedlock, 03
children were born namely A****, B**** and
R****.
Q. what is the name of your 2nd husband?
Objected by the Ld. APP for the state on the
ground that it is not relevant to the present case.
Heard. Question is disallowed being irrelevant.
Q. How many times, you were married?
Objected by the Ld. APP for the state on the
ground that it is not relevant to the preser case.
Heard. Question is disallowed being irrelevant.
Q. Whether you had taken divorce from your
previous husband (s) before marriying again?
Objected by the Ld. APP for the state on the ground
that it is not relevant to the present case. Heard.
Question is disallowed being irrelevant.
Q. Can you disclose the names of the fathers of
the above named children?
Objected by the Ld. APP for the state on the
ground that it is not relevant to the preserit case.
Heard. Question is disallowed being irrelevant.
Q. what is the name of your current husband?
A. Sh. Suresh.
q. How many children do you have from the
wedlock of Suresh?
A one girl.
Q. when was she born?
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A. Objected by the Ld. APP for the state on the
ground that it is not relevant to the present case.
Heard. Question is disallowed being irrelevant.
Q. Do you have any proof of your marriage with
Suresh?
Objected by the Ld. APP for the state on the
ground that it is not relevant to the present case.
Heard. Question is disallowed being irrelevant.
It is wrong to suggest that I am not married to
Suresh but I am the legally wedded wife of Raj
Kumar. Vol. Rajkumar had left me alongwith my
children.
Q. what are the names of the children from Raj
Kumar?
objected by the Ld. APP for the state on the
ground that it is not relevant to the prese case.
Heard. Question is disallowed being irrelevant.
Q. Had you lodged the criminal complaint at PS
Kashmere Gate against your husband R.. K****?
A. Yes. The same was with regard to non
payment of maintenance by him.
It is wrong to suggest that the said case had been
got registered at my instance in respect of
molestation of my daughter K**** by my husband
Raj Kumar or that had got him falsely implicated in
the said case. It is wrong to suggest that Raj Kumar
had been arrested and remained in custody in the said
case. Vol. He had remained in custody in a case of
theft. It is further wrong to suggest that had got a
false complaint institute against my husband Raj
Kumar from my daughter K**** before Nari Raksha
Samiti, NGO. I is further wrong to suggest that no
action was taken on said complaint as the same was
false.
I put it to you that you were having illicit
relations with one Mr. Suresh withou taking divorce
from your previous husband Raj Kumar and out of
your said relations, one male child was born,
objected by the Ld. APP for the state on the ground
that it is not relevant to the present case. Heard.
Suggestion is disallowed being irrelevant.
It is correct that the Khushi Ram is my neighbour.
It is further correct that Smt. Anita, Rakhi, Poonam,
Inder Kala and Sharda Devi are my neighborers. It is
wrong to suggest that above named ladies objected
regarding visit of Mr. Suresh at my residence. Vol.
Khushi Ram objected regarding the visit of Mr.
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by ABHISHEK
GOYAL
ABHISHEK
Date:
GOYAL 2025.07.07
16:15:00
+0530
Suresh at my residence. Accused Khushi Ram and
myself never altercated with each other on the issue
of visit of Mr. Suresh. It is wrong to suggest that the
present case has been registered on my false
complaint as accused Khushi Ram raised objection
regarding visit of Mr. Suresh at my residence.
Q. I put it to you, you have mentioned your
husband’s name as Rajkumar on 11.09.2015,
however, on the other hand, you have deposed today
that your husband’s name is Suresh and from the said
wedlock, one female child was born?
A. My husband name is Suresh. At the time of
filing of the case, my husband was Rajkumar but
after 15-20 days, he left me.
Q. Have you show any document to prove the
name of your husband as Raj Kumar at the time of
registration of the present case?
A. Yes.
*** *** ***
Today, I have brought my ID proof (voter ID).
The same is Ex. PW1/D1 (OSR). In the said ID, the
husband name of the witness is mentioned as Sh.
Rajkumar. I do not know if court cases and litigations
are pending between Vinod Kumar and Khushi Ram.
Vinod Kumar was residing at the ground floor near
Saiyad Baba Peer Masjid. At present, he is residing
at Sindhi Mohalla, Mori Gate. I had never visited the
house of Vinod Kumar at Sindhi Mohalla. I had
visited the shop of the Vinod Kumar for purchasing
some daily use articles i.e. milk and tea leaves. It is
wrong to suggest that I had falsely implicated the
accused in the present case at the instance of Vinod
Kumar, who is in litigation with Khushi Ram. It is
wrong to suggest that I have falsely implicated the
accused in the present case. It is further wrong to
suggest that my daughter has also falsely implicated
the accused at my instance. It is wrong to suggest
that I am deposing falsely…”
(Emphasis supplied)
19. Apposite at this stage to further refer to the
deposition of PW-2/W/Ct. Jyoti, who proclaimed in her
testimony that on 04.05.2013, she was posted as W/Ct. at PS
Kashmere Gate and on the said day, the complainant, ‘MD’
along with her daughter and two lady Advocates, reached at the
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ABHISHEK GOYAL
Date:
GOYAL 2025.07.07
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+0530
police station. Further, as per PW-2, the IO recorded the
complaint of the complainant, made an endorsement on the same
and thereafter, handed over the same to Ct. Gajender for
registration of FIR. Correspondingly, as per PW-2, thereafter,
she/PW-2 along with the IO, complainant, complainant’s
daughter and two lady Advocates went to the residence of the
complainant and at her/complainant’s instance, the IO prepared
the site plan, Ex. PW2/A, bearing PW-2’s signatures at point A.
PW-2 further deposed that the IO also recorded the statements of
the complainant, her daughter and two lady Advocates, under
Section 161 Cr.P.C. and in the meantime, Ct. Gajender reached at
the spot along with the copy of FIR and original tehir, which
were handed over to the IO. Thereafter, as per PW-2, the IO
searched for the appellant, however, no clue of his whereabouts
could be obtained. Correspondingly, PW-2 asserted that the IO
recorded her/PW-2’s statement, as well. Relevantly, in her cross
examination, PW-2 deposed, as under;
“XXXXXX by Sh. ***, Ld. Counsel for accused.
I cannot tell the names of lady advocates, who
accompanied the complainant. I do not know whether
the complainant had told the IO regarding the
specific place of her house, where the accused
misbehaved with the complainant. Accused did not
misbehave with the complaint in my presence. It is
wrong to suggest that I had not joined the
investigation. It is further wrong to suggest that I am
deposing falsely at the instance of the IO.”
(Emphasis supplied)
20. Notably, PW-3/Ct. Jitendra Bharadwaj proclaimed
before the Ld. Trial Court that on 23.05.2013, he was posted as
Constable at PS. Kashmere Gate and on that day, he joined the
investigation with IO/W/SI Veena Kumari. As per PW-3, he
along with the IO, reached at Court Room no. 272, Tis Hazari
C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 32 of 65
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by ABHISHEK
ABHISHEK GOYAL
Date:
GOYAL 2025.07.07
16:15:08
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Court at around 01:25 pm on the said day, where the appellant
was present along with his counsel. Thereafter, as per PW-3, IO
moved an application for interrogation of accused Khushi Ram
before the court. As per PW-3, at that point in time,
complainant’s daughter, ‘K’ was also present in the court along
with the complainant. As per PW-3, both, the complainant and
her daughter, informed them that the appellant used to
misbehave/molest (galat harkat) with the complainant and her
daughter. Further, as per PW-3, after the permission of the court,
the appellant was interrogated by the IO as well as arrested vide
arrest memo Ex. PW3/A and appellant’s personal was conducted
vide personal search memo Ex. PW3/B, both bearing PW-3’s
signatures at point A. PW-3 further avowed that the IO recorded
the disclosure statement of the appellant (Ex. PW3/C), bearing
PW-3’s signatures at point A. After preparation of all the
documents, as per PW-3, the IO moved an application for one
day police custody remand of the appellant, which was granted
by the court and the appellant was thereafter, got medically
examined in Aruna Asaf Ali Hospital. It was further deposed by
PW-3 that the appellant was also taken at his residence, i.e., J-57,
Kucha Mohatar Khan, Mori Gate, Delhi-110006 and on the
appellant’s pointing out, the appellant produced a brown
coloured underwear having mention ‘TT Titanic’ to the IO and
the same was seized by the IO while putting the same in a white
cloth pullanda sealed with the seal of ‘VK’ and the same was
taken into possession vide seizure memo Ex. PW3/D, bearing
PW-3’s signatures at point A. As per PW-3, the seal after use
was handed over to him/PW-3 and the pointing out memo was
prepared at the instance of the appellant (Ex. PW3/E), bearing
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ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2025.07.07
16:15:16 +0530
PW-3’s signatures at point A. Thereafter, they reached at the
police station and the case property was deposited with the
malkhana. PW-3 also correctly identified the case property as
well as the appellant before the Ld. Trial Court. Significantly, in
his cross examination, PW-3 inter alia asserted that at the time of
recovery of the case property, no public persons were present,
however, expressed his inability to recollect whether the IO had
asked any public persons to join the investigating or whether she
had given any written notice to any such public person. PW-3
further denied the suggestion in his cross examination that he had
not visited the spot along with the IO or that they had seized the
underwear of appellant in the lock-up of Kashmere Gate.
Notably, the testimony of PW-3 was corroborated with the
deposition of PW-5/MHC(M)(CP)/HC Kamlesh Kumar, who
produced register no. 19 and proved entry no. 3302/13 dated
04.05.2013, PS Kashmere Gate, pertaining to deposit of case
property in malkhana. Apposite to further note that PW-6/HC
Subhash produced the particulars of previous involvements of the
appellant (Ex. PW6/A) before the Ld. Trial Court, bearing
PW-6’s signatures at point A.
21. Germane for the purpose of the present discourse to
also refer to the deposition of PW-4/SI Dhan Singh, who deposed
that on 04.05.2013, he was posted as SI at PS Kashmere Gate and
on that day, the complainant reached at the police station in the
evening along with two lady Advocates namely Ms. Babita and
Ms. Meenu. PW-4 further deposed that the complainant gave her
complaint (Ex. PW1/A) and he/PW-4 made an endorsement on
the said complaint, which is Ex. PW4/A, bearing PW-4’s
signatures at point A. Thereafter, as per PW-4, he handed over
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GOYAL
ABHISHEK
Date:
GOYAL 2025.07.07
16:15:24
+0530
the original tehrir to the duty officer for registration of FIR and
after that, he/PW-4 along with the complainant, W/Ct. Jyoti and
lady Advocates reached at the spot i.e. H. No. J-76, Kucha
Mohatar Khan, Mori Gate, Delhi. PW-4 further deposed that he
prepared the site plan at the instance of the complainant bearing
PW-4’s signatures at point B, and thereafter, he/PW-4 recorded
the supplementary statement of the complainant as well as
recorded the statements of said Advocates namely Babita and
Meenu. PW-4 also asserted that on 05.05.2013, he collected the
photocopy of Aadhar Card and School Card of the complainant’s
daughter ‘K’ and seized the same vide seizure memo Ex: PW4/B,
bearing PW-4’s signatures at point A. Subsequently, on
06.05.2013, as per PW-4, he collected the age proof documents
of complainant’s daughter from MCD School vide memo Ex.
PW4/C, bearing PW-4’s signatures at point A. Further, as per
PW-4 on 06.05.2013, the statements of the complainant (Ex.
PW4/D) and her daughter (Ex. PW4/E), under Section 164
Cr.P.C. and on 07.05.2013, the counselling of the complainant
was conducted. Thereafter, as per PW-4, further investigation of
the present case was handed over to W/SI Veena. PW-4 further
correctly identified the appellant before the Ld. Trial Court.
Apposite here to further refer the cross examination of PW-4, as
under;
“XXXXXX by Sh. ***, Ld. Counsel for accused.
I do not remember whether any 100 number call
was made by the complainant or not. Those two lady
advocates namely Ms. Babita and Ms. Meenu are the
witness in the present case. I visited the spot with the
complainant and the said lady advocates on
04.05.2013 in the evening around 05.00 pm. There
were passers-by near the spot. There were residential
houses adjacent to the J-76, Kucha Mohtar Khan,
Mori Gate, Delhi. I asked the neighbours to join the
C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 35 of 65
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by ABHISHEK
ABHISHEK GOYAL
Date:
GOYAL 2025.07.07
16:15:40
+0530
investigation but none had joined due to their
personal reasons.
It is wrong to suggest that no public persons had
joined the investigation because accused did not
commit any crime and was falsely implicated in the
present case. It is wrong to suggest that the accused
has been falsely implicated in the present case at the
instance of one Sh. Vinod Kumar.
I do not know the relation of Vinod Kumar with
accused. I do not know whether said Vinod Kumar
tried to implicated the accused in false women
harassment case through his wife and daughter and
later on, withdrawn the said complaints. I do not
know whether the accused had filed a defamation
civil suit against Sh. Vinod Kumar. I cannot say
whether that the present complaint was filed against
the accused at the instance of Sh. Vinod Kumar after
filing of defamation suit.
I cannot say why the said advocates had become
prosecution witnesses in the present case. It is wrong
to suggest that Sh. Vinod Kumar had sent the said
advocates in order to falsely implicate the accused in
the present case and the another case. It is wrong to
suggest that accused did not commit any wrong with
the complainant and her daughter and he is falsely
implicated in the present case at the instance of
Vinod Kumar.
I never received any complaint on behalf of the
complainant before 04.05.2013. It is wrong to
suggest that I am deposing falsely.”
(Emphasis supplied)
22. Apposite to further refer to the deposition of PW-7/
IO/Inspector Veena, who deposed that she was the second IO in
the instant case and that the investigation was handed over to her
on 09.05.2013. Further, as per PW-7, on 23.05.2013, she was
intimated that the appellant was surrendering before the court,
whereupon she/PW-7 along with Ct. Jitender reached at Court
No. 272 of Tis Hazari Court Complex, Delhi and requested the
court for interrogation as well as arrest of the appellant. PW-7
further deposed that after inquiry from the appellant, he was
formally arrested. As per PW-7, the complainant, was also
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ABHISHEK GOYAL
GOYAL Date:
2025.07.07
16:15:44
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present along with her daughter ‘K’ in the Court. PW-7 further
proclaimed that she had recorded the statement of the appellant,
which is Ex. PW3/C, bearing PW-7’s signatures at point B. As
per PW-7, one day police custody remand of the appellant was
also taken, and the appellant was also taken to his medical
examination along with Ct. Jitender. Thereafter, as per PW-7, the
appellant was taken to H. No. J-57, Kucha Mohtar Khan, Mori
Gate, Delhi and he/PW-7 prepared the pointing out memo at the
instance of the appellant. Correspondingly, as per PW-7, at the
appellant’s instance, one underwear was seized from his house,
which he claimed that he was wearing on the day of incident.
PW-7 further proved the pointing out memo, Ex. PW3/E and the
seizure memo, Ex. PW3/D both bearing PW-7’s signatures at
point B. Further, as per PW-7, the pullanda was seized with seal
of ‘VK’ and the appellant was brought to the police station along
with the pullanda. Thereafter, as per PW-7, the case property was
deposited in the malkhana and she/PW-7 got the TIP proceedings
of the case property done before Ld. M.M, Sh. Arvind Bansal.
Further, PW-7 asserted of her preparing the chargesheet and
filing the same before the court.
23. Markedly, in her cross examination, PW-7 asserted,
as under;
“XXXXXX by Sh. ***, Ld. Counsel for accused.
I had taken accused Khusi Ram at about 07:30 to
7:45 PM to his house. I had not made any public
person as witness of seizure or pointing out. Vol. The
ladies whom I met at the house of the accused were
reluctant in becoming witness and engaging in any
police proceedings. Only two-three ladies had
gathered on the road beneath the house. It is wrong to
suggest that 15-20 persons gathered at the spot. It is
correct that the spot is residential area. It is wrong to
suggest that the spot where I had taken accused was
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by ABHISHEK
ABHISHEK GOYAL
Date:
GOYAL 2025.07.07
16:15:47
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crowded. It is wrong to suggest that I had not taken
Khusi Ram to his residence and therefore, I had not
made any public person/neighborer as witness of
pointing out. It is correct that the seizure memo bears
signature of police Constable as witness. I had
inquired from the 4-5 nearby persons and I came to
know that the accused person was habitually
misbehaving with the woman residing nearby and
usually was of quarrelsome nature. As per my
knowledge, no case of misbehavior with woman was
not lodged against accused until I investigated the
present case. I cannot tell the names of those 4-5
persons, but as far as I recall one person who was
having meat shop was also inquired by me. I do not
remember whether the names of the persons were
Rahul, Anita, Sunita, Sham Rao, Inder Kalan, Ram
Sakhi, Sharda and Prema Devi. It might be that the
names above mentioned were the names of the
persons from whom I inquired. I do not remember
whether complainant was present along with us at the
time of taking the accused from his house. It is
wrong to suggest that I had not taken accused to his
house or that I had seized the underwear of accused
while he was in judicial custody. As far as I
remembered, the name of the husband of Ms. “M”
was Raj Kumar. I had not met said Raj Kumar during
investigation. It is correct that Ms. “M” had told that
her husband left her and the children and she was not
aware where he was residing. I am not aware whether
in absence of husband of Ms. “M” somebody namely
Suresh Deepak used to visit her house. (objected to
by Ld. APP as the question pertains to character of
victim). I am not aware whether any quarrel occurred
on the issue of Suresh visiting the hosue of
complainant in absence of her husband and accused
Khushi Ram and other locality person raised
objection (objected to by Ld. APP as the question
pertains to character of victim). It is wrong to suggest
that accused has been implicated in a false case as he
objected to the visit of Suresh at house of Ms. “M” in
absence of her husband. I am not aware whether any
matrimonial case was filed by Ms. M against her
husband in Nari Raksha Samiti. I am not aware what
investigation was undertaken by Ct. Ashok. Vol. Ct.
Ashok has not participated in any investigation in
present case. It is wrong to suggest that I had not
placed the statements given by the neighborer in
favour of accused Khusi Ram. Vol. I have not
recorded the statement of public person/neighborer in
present case. I had not sent the case property to FSL.
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It is wrong to suggest that accused Khusi Ram has
been falsely implicated in the present case or that I
am deposing falsely.”
(Emphasis supplied)
24. Consequently, in light of the foregoing this Court
would proceed with the determination of the rival contentions
raised by the parties (by/on behalf of the accused persons,
complainant and the State) before this Court. In this regard, it
would be pertinent to outrightly deal with the
contention/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
complainant/victim/PW-1 ‘MD’ in the absence of corroboration
from any independent witnesses. 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)
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25. Pertinent in respect of the foregoing to further refer
to the decision of the Hon’ble High Court of Delhi in State (NCT
of Delhi) v. Pratap Singh, 2016 SCC OnLine Del 3207 , wherein
the Hon’ble Court in an akin 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)
26. Demonstrably, it is observed from above that it is a
settled law that conviction for an offence of sexual nature/one
affecting modesty of woman, can be based on the sole testimony
of the prosecutrix. In fact, even on a general principle, it has been
recurrently avowed6 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 the version of such a witness
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 declare7 that to seek corroboration to the
testimony of the prosecutrix/victim, before relying upon the same
would amount to adding insult to the injury sustained by such
victim and have, consequently, deprecated such practice.
Unmistakably, the reasons for the same can be easily inferred
from the decision of the Hon’ble Supreme Court8 in State of
Maharashtra v. Chandraprakash Kewalchand Jain, (1990) 1 SCC
6
Kusti Mallaiah v. State of A.P., (2013) 12 SCC 680.
7
State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 and Munna v. State of M.P., (2014) 10 SCC 254
8
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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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 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)
27. 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/victim, consistent in
material particulars and withstanding the rigors of cross-
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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 accused persons pertaining to the lack of corroboration in
the testimony of the victim in the instant case, necessitates
appreciation by this Court in light of the foregoing observations.
28. Correspondingly, in order to accurately appreciate
the contention of Ld. Counsel for the accused persons 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 theC.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 42 of 65
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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)
29. Similarly, the Hon’ble Apex Court in Rammi v.
State of M.P., (1999) 8 SCC 649, while dealing with similar
issue, 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)
30. Patently, from a conjoint reading of the above, it is
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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 law 9, 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 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. 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 material9
Appabhai v. State of Gujarat, 1988 Supp SCC 241
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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)
31. 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 the
complainant/PW-1 ‘MD’/victim is scrupulously analyzed, it is
observed that the victim unambiguously deposed that in the year,
2013, in the days, around the festival of Holi, her/PW-1’s
husband had left her and got married with another lady, leaving
the complainant with four children. PW-1 further deposed that
her husband had abandoned her prior to Holi festival and that
whenever she came out of her house for the purpose of her work,
the appellant, who was her neighbor and correctly identified by
PW-1 before the Ld. Trial Court, used to comment, “M****, I
Love You, ab toh tera pati chor kar chala gaya ab tera raat din
kaise katega”. PW-1 further deposed that she objected to the
same, however, the appellant smiled and replied, “kuch nahi
hota”. Correspondingly, as per the complainant, she moved from
the spot as she did not want any issue at that time, however, 02-
03 days after her objection, the appellant, called her/PW-1 to his
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house. PW-1 further avowed that when she entered the
appellant’s house, after listening to his/appellant’s voice, with a
view that he may be in need of something and being a neighbor,
she/PW-1 found that the appellant was taking a bath. It was
further deposed by PW-1 that she enquired the appellant, reason
for calling her, however, the appellant, instead of replying to her,
showed his private organ to her/PW-1. Thereafter, as per PW-1,
the appellant rushed towards her and pressed her breast, as well
as asked her to get married with him as she was alone.
Concomitantly, as per PW-1, the appellant threatened her by
saying, “agar shadi nahi karegi toh bahut kuch ho jayega” .
Pertinent to note that the complainant/PW-1 had been consistent,
thoroughly, in her initial complaint (Ex. PW1/A) as well as her
statement recorded under Section 164 Cr.P.C., in as much as the
incident in question is concerned. In fact, this Court is in
concurrence with the observation of the Ld. Trial Court that the
complainant, steadily deposed inter alia regarding the appellant’s
calling her/the complainant to his house, around 2-3 days nearing
the festival of Holi in the year, 2013, by calling her name,
displaying his private parts to the complainant as well as pressing
the breast of the complainant at that point in time.
Correspondingly, this Court further concurs with the observation
of the Ld. Trial Court that nothing material has come forth
despite the cross examination of the complainant, at the behest of
the appellant. In fact, as aforenoted, most of the questions put
forth by/on behalf of the appellant were objected to by the Ld.
Addl. PP for the State and were consequently, disallowed by the
Ld. Trial Court as being irrelevant. Clearly, under such
circumstances, even in the considered opinion of this Court, the
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appellant has not been able to shake the creditworthiness of the
deposition of the complainant in the instant case. In this regard, it
is further observed that though the Ld. Counsel for the appellant
has vehemently asserted that the complainant proclaimed of the
presence of appellant’s wife and children at the time of alleged
commission of offence and that it was not possible for the
appellant to commit the said offence in the present of his wife
and children. However, on a scrupulous analysis of material
placed on record, it is observed that nowhere in her deposition or
any of her statements, the complainant proclaimed of presence of
any such persons at the alleged time of occurrence. It is further
the contention of Ld. Counsel for the appellant that the case of
the prosecution stands belied by the fact that PW-2 did not
disclose the name of the lady Advocates, who had accompanied
the complainant. However, PW-4/SI Dhan Singh, in his
testimony deposed that on 04.05.2013, when he was posted as SI
at PS Kashmere Gate, the complainant reached at the police
station in the evening along with two lady Advocates namely Ms.
Babita and Ms. Meenu. Pertinently, it is also seen from the
record that both the said lady Advocate were cited as witnesses at
S. Nos. 2 and 3, respectively, of the chargesheet. However,
during the course of proceedings before the Ld. Trial Court, the
said witnesses were dropped vide order dated 28.08.2017 and
26.03.2018, respectively, on the observation that they were
representing the complainant and merely formal in nature, as
they had merely accompanied the complainant to the police
station.
32. Needless at this stage to further reiterate/observe that
even otherwise, the ‘so called’ discrepancies/inconsistencies in
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the testimony of the complainant, in the considered opinion of
this Court, are not material or significant so as to belie the
sterling nature of the complainant’s deposition. Even otherwise,
this Court deems it apposite to note that the appellant never
confronted the complainant either with her complaint or
statement recorded under Section 164 Cr.P.C. Clearly, the law is
settled that the ‘so called’ improvements in the testimony of
victim vis-à-vis her earlier statements, cannot be considered by
this Court at this stage, in the absence of any confrontation of the
witness in terms of the provisions under Section 161/162 Cr.P.C.
read with Section 145 of the Indian Evidence Act, 1872/Evidence
Act. Reference in this regard, is made to the decision of the
Hon’ble Supreme Court in V.K. Mishra v. State of Uttarakhand,
(2015) 9 SCC 588, wherein the Hon’ble Court, after duly
considering various provisions under law, in particular that under
Section 161/162 Cr.P.C. and Section 145 of the Evidence Act,
observed as under;
“16. Section 162 CrPC bars use of statement of
witnesses recorded by the police except for the
limited purpose of contradiction of such witnesses as
indicated there. The statement made by a witness
before the police under Section 161(1) CrPC can be
used only for the purpose of contradicting such
witness on what he has stated at the trial as laid down
in the proviso to Section 162(1) CrPC. The
statements under Section 161 CrPC recorded during
the investigation are not substantive pieces of
evidence but can be used primarily for the limited
purpose: (i) of contradicting such witness by an
accused under Section 145 of the Evidence Act; (ii)
the contradiction of such witness also by the
prosecution but with the leave of the Court; and (iii)
the re-examination of the witness if necessary.
17. The court cannot suo motu make use of
statements to police not proved and ask questions
with reference to them which are inconsistent with
the testimony of the witness in the court. The words
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in Section 162 CrPC “if duly proved” clearly show
that the record of the statement of witnesses cannot
be admitted in evidence straightaway nor can be
looked into but they must be duly proved for the
purpose of contradiction by eliciting admission from
the witness during cross-examination and also during
the cross-examination of the investigating officer.
The statement before the investigating officer can be
used for contradiction but only after strict
compliance with Section 145 of the Evidence Act
that is by drawing attention to the parts intended for
contradiction.
*** *** ***
19. Under Section 145 of the Evidence Act when
it is intended to contradict the witness by his
previous statement reduced into writing, the attention
of such witness must be called to those parts of it
which are to be used for the purpose of contradicting
him, before the writing can be used. While recording
the deposition of a witness, it becomes the duty of
the trial court to ensure that the part of the police
statement with which it is intended to contradict the
witness is brought to the notice of the witness in his
cross-examination. The attention of witness is drawn
to that part and this must reflect in his cross-
examination by reproducing it. If the witness admits
the part intended to contradict him, it stands proved
and there is no need to further proof of contradiction
and it will be read while appreciating the evidence. If
he denies having made that part of the statement, his
attention must be drawn to that statement and must
be mentioned in the deposition. By this process the
contradiction is merely brought on record, but it is
yet to be proved. Thereafter when investigating
officer is examined in the court, his attention should
be drawn to the passage marked for the purpose of
contradiction, it will then be proved in the deposition
of the investigating officer who again by referring to
the police statement will depose about the witness
having made that statement. The process again
involves referring to the police statement and culling
out that part with which the maker of the statement
was intended to be contradicted. If the witness was
not confronted with that part of the statement with
which the defence wanted to contradict him, then the
court cannot suo motu make use of statements to
police not proved in compliance with Section 145 of
the Evidence Act that is, by drawing attention to the
parts intended for contradiction.”
(Emphasis supplied)
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33. Here, it is further pertinent to note that the Ld.
Counsel for the appellant/appellant has endeavored to belie the
version put forth by the complainant, whilst questioning her
character, in particular, by asserting that the deposition of the
complainant loses its creditworthiness owing to her alleged
relationship with several partners and non-disclosure of the
(alleged) correct name of her spouse. However, the said
contention too fails to impress this Court in view of the repeated
avowals of the superior court. In fact, even Section 53A of the
Evidence Act, explicitly provides that in a prosecution for an
offence inter alia under Sections 354/354A IPC, “…or for
attempt to commit any such offence, where the question of
consent is in issue, evidence of the character of the victim or of
such person’s previous sexual experience with any person shall
not be relevant on the issue of such consent or the quality of
consent…” Correspondingly, this Court is not convinced with the
submissions of the appellant that mere non-disclosure of her
exact marital status by the complainant in the instant case would
have any bearing to the instant proceedings. Clearly, such non-
disclosure, in the considered opinion of this Court, does not belie
her consistent version put forth before the Ld. Trial Court
regarding the incident in question and the role played by the
appellant, while committing the offence(s). Apposite to further
note that this Court finds itself difficult to assent to/concur with
the submission of the Ld. Counsel for appellant that the acquittal
of the appellant in the case emanating out of FIR No. 115/2013
would entail an automatic acquittal in the present case as well,
considering that the trials of both the said cases are dependent on
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the material/evidence brought forth before the respective courts.
Needless in this regard to further observe that not only was any
of the prosecution witnesses in the present case, confronted with
the alleged discrepancy brought forth in the said case (FIR No.
115/2013), rather, even the material placed on record;
testimonies of witnesses produced; and basis of allegations
against the appellant herein as well as the victims in both the
cases, i.e., present FIR and FIR No. 115/2013 are admittedly
dissimilar, which, in the considered opinion of this Court, would
not have bearing on each other. Needless in this regard to
reiterate that the victim/complainant before the Ld. Trial Court
consistently deposed regarding the appellant’s calling her/the
complainant to his house, around 2-3 days nearing the festival of
Holi in the year, 2013, displaying his private parts to the
complainant as well as pressing the breast of the complainant at
that point in time. Correspondingly, this Court reiterates that
nothing material has emerged/come forth in the cross-
examination of the complainant, so as to belie her unswerving
deposition/assertion against the appellant. Further, in light of the
foregoing, this Court is not convinced with the submissions of
the Ld. Counsel for the appellant that non joining of public
witnesses to the incident in question would have material
bearing, considering the consistent stand of the prosecutrix and
the aforenoted judicial dictates asserting that in the incidents of
sexual offences, the public witnesses are mostly wanting as such
offences usually take place in secrecy and the public witnesses
may not be forthcoming to tender evidence, even if available.
Correspondingly, as aforenoted, the superior courts have asserted
that to seek corroboration in such situation may amount to
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harassment of the victim and adding insult to the injury sustained
by her/such victim.
34. In as much as the contention of the Ld. Counsel for
the appellant pertaining to delayed reporting of the incident in
question by the complainant is concerned, this Court
unambiguously observes that from a conscientious perusal of the
material placed on record, the reasons for such delay have been
explained by the complainant as her being alone owing to her
husband’s leaving, responsible for her four daughters and the
social stigma, which would have ensued, had she reported the
incident. In fact, as aforenoted, when she came to know of
occurrence with her daughter, ‘K’ by the appellant, she could not
to tolerate any further and got her complaint registered. Clearly,
under such circumstances, this Court is of the considered opinion
that the delayed reporting would not belie the version of the
complainant in the instant case. In fact, this Court is conscious
that the superior courts have persistently remarked that in the
instances/incidents of sexual offences/offences of sexual tenor,
delay in the lodging of the FIR can be due to variety of reasons,
particularly the reluctance of the prosecutrix or her family
members to go to the police and complain about the incident
which concerns the reputation of the prosecutrix and the honour
of her family, consequently, such delay(s) cannot be read against
the prosecutrix of a case. In fact, in this regard, the Hon’ble Apex
Court in Dildar Singh v. State of Punjab, (2006) 10 SCC 531 ,
overtly explicated as under;
“6. …A girl in a tradition-bound non-permissive
society would be extremely reluctant even to admit
that any incident, which is likely to reflect upon her
chastity, had occurred, being conscious of the danger
of being ostracised by the society or being looked
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down by the society. Her not informing anyone about
the incident in the circumstances cannot detract from
her reliability. In normal course of human conduct an
unmarried girl would not like to give publicity to the
traumatic experience she had undergone and would
feel terribly embarrassed in relation to the incident to
narrate such incident. Overpowered, as she may be,
by a feeling of shame her natural inclination would
be to avoid talking to anyone, lest the family name
and honour is brought into controversy. Thus, delay
in lodging the first information report cannot be used
as a ritualistic formula for doubting the prosecution
case and discarding the same on the ground of delay
in lodging the first information report. Delay has the
effect of putting the court on guard to search if any
explanation has been offered for the delay and, if
offered, whether it is satisfactory”
(Emphasis supplied)
35. Clearly, upshot of the foregoing discussion is that
ordinarily the victim/family of victim of sexual offences, tend to
be hesitant in reporting the matter to the police, lest their life and
family’s reputation may be put to jeopardy. Ergo, under such
circumstances, delay in lodging the first information report is
quite a normal phenomenon and cannot be read against a
prosecutrix. In fact, in this regard, the Hon’ble Supreme Court in
Ramdas v. State of Maharashtra, (2007) 2 SCC 170 , while also
appreciating the factors leading to delay of lodging of FIR under
such instances noted as under;
“24. …In the case of sexual offences there is
another consideration which may weigh in the mind
of the court i.e. the initial hesitation of the victim to
report the matter to the police which may affect her
family life and family’s reputation. Very often in
such cases only after considerable persuasion the
prosecutrix may be persuaded to disclose the true
facts. There are also cases where the victim may
choose to suffer the ignominy rather than to disclose
the true facts which may cast a stigma on her for the
rest of her life. These are cases where the initial
hesitation of the prosecutrix to disclose the true facts
may provide a good explanation for the delay in
lodging the report. In the ultimate analysis, what is
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the effect of delay in lodging the report with the
police is a matter of appreciation of evidence, and the
court must consider the delay in the background of
the facts and circumstances of each case. Different
cases have different facts and it is the totality of
evidence and the impact that it has on the mind of the
court that is important. No straitjacket formula can be
evolved in such matters, and each case must rest on
its own facts…”
(Emphasis supplied)
36. Categorically, mere lapse of time between the
occurrence of an incident to that of reporting thereof by a
prosecutrix to the concerned authorities cannot be the sole
ground to outrightly discard her version of incident. On the
contrary, courts are duty bounded to consider the facts leading
upto such delay, in light of the factual scenario as well as the
realities of the society. As aforenoted, in the instance case, the
complainant has explained the reasons for not agitating her
concerns earlier and despite her such assertion, nothing has been
brought forth in the cross-examination to belie the assertion of
the complainant.
37. Correspondingly, here it pertinent to deal with the
contention of the Ld. Counsel for the appellant relating to present
proceeding being malicious and emanating out of ill-will.
However, upon conscientious perusal of the material placed on
record, the said contention of the Ld. Counsel for the appellant,
does not find favour with this Court. In this regard, it is pertinent
to outrightly refer to the statement of the appellant, record in
terms of the provisions under Sections 281/313 Cr.P.C., wherein
the appellant inter alia proclaimed as under;
“…Q-13. Do you have anything else to say?
A. I am innocent and falsely implicated in the
present case by the complainant. Two ladies namely
Anita, Sunita @ Rakhi of the same locality raised
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objections regarding the repeated visits of one person
namely Suresh @ Deepak, in the absence of husband
of the complainant, at her residence, even at the odd
hours of the night. Both of them requested me to ask
the complainant for not allowing the said person in
the absence of her husband and thereafter I requested
the complainant for not allowing Mr. Suresh to visit
her residence, in her husbands absence as it would
have adverse effect on the residents of the locality
including young ladies and girls. The husband of the
complainant namely, Raj Kumar, had gone to his
native place, at Bihar and before his departure, he
requested me to take care of his house as I am
adjoining neighbour of the complainant. Ram Sakhi,
Shyam Rao, Sharda Devi, Chander kala, Inder kala,
Prema Devi and Sita bai also requested the
complainant to mend her behaviour and not to allow
stranger in her house in the absence of her husband
and when the complainant failed to respond, they
also went to Police Post Mori gate. At the said
Chowki one Police Official Ashok and other one
namely Ramesh were found and all the public
persons reported the actual state of affairs and
objection regarding the visit of stranger at the
residence of the complainant. Complainant also
visited the police post and leveled the false
allegations against me but on inquiry I was let off by
the police officials. Thereafter, IO Dhan Singh
visited the locality of Mori Gate and made inquiry
from the residents. Thereafter, one police official Mr.
Ashok visited the locality and recorded the
statements of Ram Sakhi, Shyam Rao, Sharda Devi,
Chander kala, Inder kala, prema Devi and Sita bai,
who stated that the only dispute was relating to the
visit of stranger at the house of the complainant in
the absence of her husband and that there was no
case of molestation by me. Thereafter, twice
statements of the residents of the locality were
recorded by the police officials but they were not
produced before this hon’ble court with malafide
intention to involve me in false case. I have also
come to know that during the proceedings of the
present case the complainant has given birth to one
female child from outside the wedlock and with a
stranger namely Suresh @ Deepak. There is civil suit
pending between myself and my cousin brother
Ramesh and in order to pressurize me to withdraw
the said civil suit, I have been involved in the present
case at the instance of complainant who is associateC.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 55 of 65
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of Mr. Vinod. I have been falsely implicated by the
complainant as well as her daughter also namely ‘K’.”
(Emphasis supplied)
38. Notably, it is seen from above that the appellant has
asserted regarding his false implication in the instant case at the
behest of the complainant on the ground that he had objected to
the relationship of the complainant with one Suresh on the asking
of other neighbours of the locality. Concomitantly, in variance to
the said defence, the appellant further proclaimed before the Ld.
Trial Court that he was falsely roped in the present case due to
one civil litigation pending between him and his cousin brother
and that the complainant, in order to pressurize the appellant at
the instance of one Vinod filed the present case. In fact, the
appellant also produced defence witness, i.e., DW-1/Smt. Sharda
and DW-2/Ms. Anita in order to buttress his case/defence
pertaining to his false implication owing to his objection on the
relationship between the complainant and Suresh.
Correspondingly, during the cross-examination of prosecution
witnesses, in particular that of PW-1 and PW-4, the appellant
suggested to the said witnesses that the appellant was falsely
implicated in the present case by the complainant at the behest of
one Vinod Kumar, which the said witnesses denied. However, on
a careful analysis of the material brought forth on record by the
appellant, this Court concedes with the finding of the Ld. Trial
Court that the appellant’s defence fails to inspire confidence. In
this regard, it is outrightly noted that none of the said defence
witnesses, assert regarding the pendency of any civil suit or of
any malicious act on the part of the complainant to falsely
implicate the appellant in the instant case, while acting in
connivance with one, Vinod. In fact, even the complainant,
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denied the suggestion in her cross examination of her visiting the
house of Vinod Kumar at Sindhi Mohalla or acting in connivance
with him so as to implicate the appellant in the instant case.
However, despite the same, neither any evidence of civil dispute
between the appellant and Vinod Kumar or of any collusion
between the complainant and Vinod Kumar have been brought
forth on record. In the alternate, as aforenoted, the appellant
asserted that he objected to the complainant’s relationship with
one Suresh. However, the exact date, time and place, when such
incident happened is not forthcoming under the statement of the
complainant, recorded under Section 281/313 Cr.P.C. Even
otherwise, whilst the appellant asserted that one Anita raised
objection to visit of Suresh in the complainant’s house, however,
DW-2/Anita did not depose anything of the likes in her testimony
before the Ld. Trial Court. In fact, upon being cross examined on
behalf of the State, DW-2 specifically asserted that she was not
aware of the reason of quarrel between the complainant and the
appellant as she had left for her household work.
Correspondingly, DW-2 asserted that she was not aware, if the
appellant had misbehaved with the complainant after she left and
also that she was not aware about the personal difference
between the complainant and the appellant. Clearly, the version
put forth by DW-2, even in the considered opinion of this Court,
does not come to the aid and rescue of the appellant in the instant
case. Concomitantly, the deposition of DW-1 would not aid the
case of the appellant as being extremely vague, being bereft of
particulars of the date and particulars of the alleged incident of
quarrel between the complainant and the appellant or of her
visiting the police station. In fact, DW-1 despite expressing
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awareness of the alleged incident, even failed to disclose the
particular/residential address of the complainant upon being cross
examined. Ergo, under such circumstances, this Court reiterates
that the defence put forth by the appellant is not only extremely
vague, rather, unappealing to the senses of this Court.
39. Consequently, in conspectus of the above and inter
alia keeping in view consistent and ‘sterling’ testimony of the
complainant/victim/prosecutrix/PW1; the documents placed on
record, in the considered opinion of this Court, allegations
levelled/charges in question stand duly proved against the
appellant herein. In fact, from the aforesaid, it is proved ‘beyond
reasonable doubt’ that the appellant, 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; assaulted and/or used of criminal
force to the complaint/prosecutrix, besides made physical contact
and advances involving unwelcome and explicit sexual overtures
towards the complainant, by displaying to the complainant,
his/appellant’s private part as well as pressing her breasts,
thereby, made himself liable for the offences punishable under
Sections 354 and 354A IPC. Correspondingly, in the said process
and by gestures so intended, i.e., by displaying his private organ
to the complainant, asking her to marry him as she was alone,
besides threatensing her by saying, “agar shadi nahi karegi toh
bahut kuch ho jayega”, the appellant also made himself liable for
the offences punishable under Section 509 IPC. Here, it is further
pertinent to refer to the decision of Hon’ble Kerala High Court in
M.M. Haries v. State of Kerala, Crl. MC No. 9717 of 2002, dated
16.02.2005: 2005 Cri. LJ 3314, wherein the Hon’ble Court,
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explicated the meaning of term, ‘gesture’ under Section 509 IPC
by inter alia observing, as under;
“8. Then the question is whether it will come
within the expression ‘making gesture’ used in
section 509 IPC. But, the word `gesture’ is ordinarily
used to refer to making of body signs implying
movement of the limbs etc. It is used to refer to
body-language. But, writing of letters does not
involve any body language and hence it may
apparently appear that such act will not amount to
`making gesture’ as referred to in section 509 IPC.
But, what does the expression `gesture’ actually
mean? Lord Denning, an English judge cautioned in
Seaford Court Estates’s case (vide 1949 2 All ER
155) that `the English language is not an instrument
of mathematical precision’. To an Indian judge,
English is even more intrinsic being a foreign
language. So, to understand the real meaning of an
English word, I shall safely depend upon the
dictionary first.
9. A reference to the dictionary is inevitable in
this case because the word `gesture’ is not defined
under the Indian Penal Code. The meaning of the
word `gesture’ as per Concise Oxford Dictionary,
eighth edition is, “a significant movement of a limb
or the body; the use of such movements esp. to
convey feeling or as a rhetorical device; an act to
evoke a response or convey intention”. As per
Collins Cobuild `English Dictionary for advanced
learners’ third edition, `gesture’ is “something that
you say or do in order to express your attitude or
intentions, often something that you know will not
have much effect” As per Law Lexicon’ the word
`gesture’ means “a posture or movement of the body;
an action expressive of the sentiment or passion of
intended to show inclination or disposition.”
10. It is thus clear from the above discussion that
the word `gesture’ refers not merely to body signs.
Though the word `gesture’ is ordinarily used to mean
movement of the limbs or body to convey a person’s
feelings, it can also connote an act done by a person
to convey his intentions. According to dictionary
meaning, an act done by a person to express his
attitude or intentions also is a `gesture’. A person can
express his attitude or convey his intentions in a
number of ways. For example, by speaking, giving,
looking, writing etc., etc. In that sense of the word, a
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ABHISHEK GOYAL
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person can make a gesture by doing an act without
involving any body signs.”
(Emphasis supplied)
40. In as much as the aspect of sentence awarded to the
appellant is concerned, this Court deems it apposite to note that
though, the penal provisions under law/IPC, prescribe for
penalties to be imposed for offences, however, no harmonized
strategies exist for the manner and quantum of sentence which
may be awarded to an accused in each case. In fact, law provides
for a considerable relaxation/discretion to the Courts at the time
of awarding sentence, which in the light of persistent avowals of
the superior courts10, has to be exercised, mindful of such
parameters. Indisputably, the inclination of courts is usually tilted
towards reformative and rehabilitative approach towards the
accused, however, superior court have also incessantly cautioned
that sentencing should be adequate, just, and reasonable, for
exercising undue sympathy, by imposing inadequate sentence
may often result into causing more harm to the justice system. In
this regard, reference is made to the decision of the Hon’ble
Supreme Court in Hazara Singh v. Raj Kumar, (2013) 9 SCC
516, wherein the Hon’ble Court observed as under;
“17. We reiterate that in operating the sentencing
system, law should adopt the corrective machinery or
deterrence based on factual matrix. The facts and
given circumstances in each case, the nature of the
crime, the manner in which it was planned and
committed, the motive for commission of the crime,
the conduct of the accused, the nature of weapons
used and all other attending circumstances are
relevant facts which would enter into the area of
consideration. We also reiterate that undue sympathy
to impose inadequate sentence would do more harm
to the justice system to undermine the public10
‘X’ v. State of Maharashtra, (2019) 7 SCC 1; and Sunil Dutt Sharma v. State (Govt. of NCT of Delhi), (2014) 4
SCC 375.
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confidence in the efficacy of law. It is the duty of
every court to award proper sentence having regard
to the nature of the offence and the manner in which
it was executed or committed. The court must not
only keep in view the rights of the victim of the
crime but also the society at large while considering
the imposition of appropriate punishment.”
(Emphasis supplied)
41. Similarly, the Hon’ble Supreme Court in Raju
Jagdish Paswan v. State of Maharashtra, (2019) 16 SCC 380 ,
while iterating the objective behind sentencing enunciated as
under;
“9. The maintenance of peace, order and security
is one of the oldest functions of the civil society. The
imposition of penal sanctions on those who have
infringed the rules by which a society has bound
itself are a matter of legitimate interest to the
members of the society…Punishment is the just
desert of an offender. The society punishes not
because it has the moral right to give offenders what
they deserve, but also because punishment will yield
social useful consequences: the protection of society
by incapacitating criminals, the rehabilitation of past
offenders, or the deterrence of potential
wrongdoers…The purposes of criminal sentencing
have traditionally been said to be retribution,
deterrence and rehabilitation. To these there may
now perhaps be added: incapacitation (i.e. putting it
out of the power of the offender to commit further
offences) and the maintenance of public
confidence…”
(Emphasis supplied)
42. Apposite to further observe that besides the resolute
affirmations of the superior courts, inclined towards the grant of
just and appropriate sentence, there has also been a cautionary
word11 that mere long pendency of case is no ground to award
lesser sentence. Needless to mention, courts 12 have also declared
that an offence which affects the morale of the society should be
11
State of M.P. v. Ghanshyam Singh, (2003) 8 SCC 13.
12
State of M.P. v. Bablu Natt, (2009) 2 SCC 272
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dealt with a heavy hand. Further, the practice of awarding
sentence, less than the minimum prescribed under law has been
assiduously deprecated by the Hon’ble Supreme Court13 and even
in cases, where discretion is granted/afforded to the courts under
law to show some relaxation even in the cases where minimum
sentence is prescribed, courts are cautioned to take due
consideration of just, proper, adequate and sufficient reasons to
do so. Reference in this regard is made to the decision of the
Hon’ble Supreme Court in State of M.P. v. Babbu Barkare,
(2005) 5 SCC 413, wherein the Hon’ble Court inter alia noted as
under;
“19. In both sub-sections (1) and (2) of Section
376 minimum sentences are prescribed.
20. Both in cases of sub-sections (1) and (2) the
court has the discretion to impose a sentence of
imprisonment less than the prescribed minimum for
“adequate and special reasons”. If the court does not
mention such reasons in the judgment there is no
scope for awarding a sentence lesser than the
prescribed minimum.
21. In order to exercise the discretion of reducing
the sentence the statutory requirement is that the
court has to record “adequate and special reasons” in
the judgment and not fanciful reasons which would
permit the court to impose a sentence less than the
prescribed minimum. The reason has not only to be
adequate but also special. What is adequate and
special would depend upon several factors and no
straitjacket formula can be indicated . What is
applicable to trial courts regarding recording reasons
for a departure from minimum sentence is equally
applicable to the High Court. The only reason
indicated by the High Court is that the accused
belonged to rural areas. The same can by no stretch
of imagination be considered either adequate or
special. The requirement in law is cumulative.”
(Emphasis supplied)
43. Ergo, in light of the aforesaid observations and
13
Harendra Nath Chakraborty v. State of W.B., (2009) 2 SCC 758
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dictates, as well as considering the provisions the provisions
under law and the arguments addressed, this Court resolutely
declared that in light of the factual scenario of the present case
and the offences involved, especially being further cognizant of
the fact that the offences in the instant case were directed against
a woman, Ld. Trial Court had acted quite leniently by awarding
minimum sentence, prescribed under law for the offences under
Section 354/354A/509 IPC to the appellant. Quite
understandably, considering that the purpose of sentencing is not
only to punish the errant behavior but to also have deterrent
effect on the society, the appellant does not, in the considered
opinion of this Court, deserves any indulgence at this stage, even
in the aspect of sentence so awarded by the Ld. Trial Court.
44. Conclusively, in view of the above discussion, the
present appeal deserves to be rejected/dismissed and is hereby
dismissed. As a corollary, the judgment dated 24.12.2020 passed
by Ld. MM (Mahila Court)-03, Central, Tis Hazari Courts, Delhi
in case bearing ‘State v. Khushi Ram, Cr. Case No.
290823/2016′, arising out of FIR No. 99/2013, PS. Kashmere
Gate, under Sections 354/354A/509/506 IPC, convicting the
appellant for the offences punishable under Sections
354/354A/509 IPC is upheld. However, the consequent order of
sentence dated 12.01.2021, awarding the appellant; rigorous
imprisonment for a period of 02 (two) year along with fine of Rs.
2,000/- (Rupees Two Thousand only), in default of payment of
which fine, to undergo simple imprisonment for a period of 30
(thirty) days for the offence under Section 354 IPC; rigorous
imprisonment for a period of 02 (two) years along with fine of
Rs. 2,000/- (Rupees Two Thousand only), in default of payment
C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 63 of 65
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ABHISHEK GOYAL
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of which fine, to undergo simple imprisonment for a period of 30
(thirty) days for the offence under Section 354A IPC; and
rigorous imprisonment for a period of 02 (two) years for the
offence under Section 509 IPC, is modified only to the extent
that instead of rigrous imprisonment for a period of 02 (two)
years for the offence under Section 509 IPC, the appellant would
undergo simple imprisonment for a period of 02 (two) years for
the offence under Section 509 IPC. Needless to reiterate that the
sentences shall run concurrently, besides the appellant would be
entitled to the benefit under Section 428 Cr.P.C./Section 468
Bharatiya Nagarik Suraksha Sanhita, 2023/BNSS. Further, it is
directed that the fine deposited by the appellant be released to the
victim/complainant, as compensation. 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.
45. Consequently, the appellant, Khushi Ram is directed
to surrender before the Ld. Trial Court within a period of 07
(seven) days from today for serving the sentence/remainder
period thereof.
46. Trial Court Record be sent back along with a copy of
this judgment with direction to proceed as per law. Copy of this
order/judgment be also given dasti to the appellant. Further,
compliance of the decision of the Hon’ble Supreme Court in
Suhas Chakma v. Union of India (UOI) & Ors.,
MANU/SC/1147/2024 has been carried out. Further, file bearing
SC No. 27855/2016, arising out of FIR No. 115/2013 be sent
C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 64 of 65
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ABHISHEK GOYAL
GOYAL Date:
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back to the concerned record room.
47. Appeal file be consigned to record room after due
compliance.
Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.07.07 16:18:33 +0530 Announced in the open Court (Abhishek Goyal)
on 07.07.2025. ASJ-03, Central District,
Tis Hazari Courts, Delhi
C.A. No. 14/2021 Khushi Ram v. State (GNCT of Delhi) Page 65 of 65
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