Delhi District Court
Shweta Arora vs State Of Nct Delhi on 4 July, 2025
IN THE COURT OF SH. ABHISHEK GOYAL, ADDITIONAL
SESSIONS JUDGE-03, CENTRAL DISTRICT, TIS HAZARI
COURTS, DELHI
CNR No.: DLCT01-016422-2024
CRIMINAL APPEAL No.: 430/2024
DR. 'SA1',
D/o. Shri. 'DA',
R/o. 'XYZ'. ... APPELLANT
VERSUS
1. STATE (GNCT OF DELHI).
2. MANISH SHARMA,
S/o. Late Shri. Roshan Lal Sharma,
R/o. BN-42, East Shalimar Bagh,
Delhi. ... RESPONDENTS
Date of e-filing : 31.08.2024
Date of institution : 18.10.2024
Date when judgment was reserved : 03.06.2025
Date when judgment is pronounced : 04.07.2025
JUDGMENT
1. The present appeal has been filed under Section 378
of the Code of Criminal Procedure, 1973 ( hereinafter, referred to
as ‘Cr.P.C./Code’)/Section 419 of the Bharatiya Nagarik
Suraksha Sanhita, 2023 (hereinafter referred to as ‘BNSS’)
against the judgment dated 26.07.2024 (hereinafter referred to as
‘impugned judgment’), passed by learned Judicial Magistrate
First Class (Mahila Court)-04/Ld. JMFC (Mahila Court)-04,
Central, Tis Hazari Courts, Delhi (hereinafter referred to as the
‘Ld. Trial Court/Ld. JMFC’) in case bearing, ‘State v. Manish
Sharma, Cr. Case No. 10371/2021′, arising out of FIR No.
247/2021, PS. Civil Lines, under Sections 354A/506 of the
1
Identities of the prosecutrix as well as that of her other family members have deliberately been withheld in view
of the decisions in; Birbal Kumar Nishad v. State of Chhattisgarh, 2021 SCC OnLine SC 3464; X v. State of
Maharashtra, 2023 SCC OnLine SC 279; and Saleem v. State (NCT of Delhi), (2023) 3 HCC (Del) 365: 2023 SCC
OnLine Del 2190.
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Indian Penal Code, 1860 (hereinafter referred to as ‘IPC‘),
acquitting respondent no. 2 of the offence(s) punishable under
Sections 354A/506 IPC.
2. Succinctly, the prosecution’s case before the Ld.
Trial Court is premised on the complaint of the
complainant/victim/appellant, ‘SA’, who is asserted to have
tendered a written complaint dated 29.06.2021 to SHO, PS. Civil
Lines against the allegation of commission of sexual harassment
by respondent no. 2. Relevantly, under her said complaint, the
complainant inter alia asserted that respondent no. 2 as well as
one Ms. Neerja Sharma, owed her money to a tune of Rs.
2,72,000/- (Rupees Two Lakhs Seventy Thousand only) and they
had been persistently denying settlement of the appellant’s
account, unless she/the appellant agreed to fulfill respondent no.
2’s physical desire. The complaint further records that the
aforesaid monetary transactions took place as respondent no. 2
called the appellant to meet him/respondent no. 2 at Civil Lines.
The appellant further asserted that, though, initially respondent
no. 2 proposed to meet the appellant at her house, however,
considering that the appellant resided alone and did not meet
anyone at her home, she/the appellant agreed to meet respondent
no. 2, outside at Best of Asia Restaurant, Civil Lines ( hereinafter
referred to as the ‘restaurant/BOA Restaurant’). Corresponding,
as per the appellant, upon such congregate, as she/the appellant
was sitting in the restaurant, respondent no. 2 touched her
inappropriately. It is further the case of the appellant that when
she objected and asked respondent no. 2 to behave, he/respondent
no. 2 asked the appellant to go to some isolated place or cinema
hall, as he was experiencing discomfort in the restaurant and on
the premise that he wanted to get close to the appellant.
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Thereafter, when the appellant is asserted to have walked out of
the restaurant, respondent no. 2 is proclaimed to have followed
her to parking area, where his/respondent no. 2’s car was parked,
approached the appellant, touched her/appellant’s breast,
molested her as well as coerced her for physical favors. The
appellant further avowed that when she expressed displeasure to
the conduct of respondent no. 2 and refused to submit to the
demands of respondent no. 2, then, respondent no. 2 is
proclaimed to have pushed the appellant and threatened her of
dire consequences of injury to life as well as loss of her entire
alleged dues of Rs. 12,92,000/- (Rupees Twelve Lakhs Ninety
Two Thousand only). Further, as per the prosecutrix/appellant,
the entire incident, as aforenoted, is asserted to have taken place
on 26.06.2017. Notably, on the basis of the
complainant’s/appellant’s instant complaint, the FIR of the
present case was registered, and investigation ensued.
Significantly, during the course of investigation proceedings,
statement of the complainant/appellant, under Section 164
Cr.P.C. was got registered before the concerned Ld. MM and
respondent no. 2 was made to join the investigation, by issuance
of notice under Section 41A Cr.P.C.
2.1. Relevantly, under her statement dated 01.07.2021,
recorded in terms of the provisions under Section 164 Cr.P.C., the
appellant inter alia proclaimed as under;
“…हमारी College की Teacher है/ इनका नाम
Neerja Sharma है/ 16-17 साल से relation था/ मेरी
mother की death पर वह Gurudwara आई/ अन्होने बोला
don’t feel alone/ अनहोने मेल जोल बढ़ाया/फिर एक
financial dealing हु ई 12.92 lakh की/ उन्हें जरूरी थी तो
हमने अपनी FD तोड़कर paise दिए/ 7 lakhs account-
account transfer हैं / 3.20 lakhs cash dealing हु ई/
88,000 short payment किया हमारे को/ Neerja Sharma
ने अपने brother-in-law Manish Sharma को मेरे से
introduce करवाया, ये कह कर कि हमारा Finance का
CA No. 430/2024 SA v. State & Anr. Page 3 of 46
Digitally
signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.07.04
15:22:28
+0530
सारा काम यही देखता है/ Manish Sharma ने हमारे से
2.72 lakhs की dealing करी/ उसमें air tickets, Hotel
booking, consultancy शामिल थी/ एक के स चल रहा है
उन लोगो पर DRT में / Amount माँगने पर Manish
Sharma ने मुझे Civil Lines में Hotel Best of Asia में
बुलाया/वहां पर उसने मुझे hand पर touch किया/ कहीं
और चलने को भी बोला/ उन्होंने बोला ऐसी जगह चलते हैं
जहां मैं तुम्हारे close आ सकु / Parking में उन्होंने मुझे
touch किया, मेरे breast को touch किया/ He molested
me, he threatened me/ रातों रात घर से उठें की धमकी भी
दी/ मुझे धक्का दिया/ Right elbow में चोट लगी थी/ 4
दिन तक मैं अपनी senses में नहीं थी/ मेरे paise वापस
नहीं दिये/ Legal action लिया जाये, इन लोगों के
ख़िलाफ़…”
(Emphasis supplied)
2.2. Subsequently, upon conclusion of investigation in
the present case, chargesheet was filed by the concerned IO
before the Ld. Trial Court. Notably, consequent upon Ld. Trial
Court’s taking cognizance of the offence on 20.09.2021,
summons were issued to respondent no. 2. Subsequently, upon
compliance of provisions under Section 207 Cr.P.C., disposal of
application under Section 173(8) Cr.P.C., moved on behalf of the
appellant before the Ld. Trial Court vide order dated 30.08.20221,
and on the arguments on charge having been addressed by/on
behalf of respondent no. 2, State and the complainant/appellant,
Ld. Trial Court vide its order dated 05.01.2023 directed framing
of charges against respondent no. 2, inter alia, under the
following observations;
“…6. A perusal of the complaint as well as the
statement of the complainant under Sec. 164 Cr.PC,
prima facie, show that there were indeed monetary
transactions between the parties and the same led to
certain disputes. However, this does not by itself,1
Reference is made to report dated 29.08.2022, filed by/on behalf of the concerned IO before the Ld. Trial Court,
in response to appellant’s application under Section 173(8) Cr.P.C., inter alia proclaiming, “…The transactions
between both the parties are simply money transactions even the complainant herself has given the payment to the
alleged parties as a loan amount. Apart from this, the banks statement also confirmed that alleged persons have
returned the amount to the complainant. Most importantly, a civil litigation is already pending between both the
parties with respect to recovery of amount. As such, the money given by S*** A*** to Neerja Sharma and
Payments for tickets of hotels/train/Flight of Manish Sharma do not attract section 420 IPC. The matter is
completely of civil nature and litigation is pending before Ld. Court.*** As per the complaint of complainant
S*** A*** and statement u/S. 164 Cr.P.C., Section 354 IPC does not attract in the present case…” (Emphasis
supplied)
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ABHISHEK GOYAL
Date:
GOYAL 2025.07.04
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lead to the conclusion, that the incident in question
did not take place. Merely because certain disputes of
a civil nature are pending between the parties, the
same does not rule out the possibility of the accused,
subjecting the complainant to inappropriate physical
and sexual advances and threatening her of adverse
consequences upon the complainant’s refusal to
oblige to the illegitimate demands of the accused.
Although, there are certain improvements in the
statement of the complainant recorded under Sec.
164 Cr.PC over her initial complaint, these
inconsistencies can only be examined at the stage of
trial and it is worth nothing that the complainant has
maintained the same stance as regards the alleged
sexual assault, she was subjected to. Additionally, the
accused has cast a doubt on the occurrence of the
incident on the ground that despite the alleged
misbehaviour of the accused, the complainant neither
raised any alarm in the restaurant nor alerted the staff
or called the police. Further, the fact that the
complainant accompanied the accused to the parking
lot, also casts a doubt on the occurrence of the
alleged incident. At this stage, the Court cannot enter
into a microscopic examination or a hair-splitting
exercise into the incident as alleged or the response
of the complainant, to the act of the accused. The
Court only has to decipher, as to whether from the
allegations levelled by the complainant, the offence
in question is made out or not. The veracity of the
allegations, as levelled by the complainant, are a
matter of trial and can only be determined once
evidence is led. At this stage, there is sufficient
material on record, to presume that the offence, as
alleged, has been committed by the accused.
Therefore, at this stage, based on the material on
record, the offence under Sec. 354A/506 IPC is
attracted against the accused Manish Sharma.
7. Accordingly, charges be framed against
accused Manish Sharma, for offence under section
354A/506 IPC.
8. Copy of this order be given dasti to the accused
as prayed for. Nothing in this order, shall tantamount
to any opinion on the merits of this case…”
(Emphasis supplied)
2.3. Consequently, the following charges were framed
against respondent no. 2 by the Ld. Trial Court on 05.01.2018;
“…I, ***, M.M., Delhi, hereby charge you
Manish Sharma S/o. Late Sh. Roshan Lal Sharma, as
under:
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Digitally signed
ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2025.07.04
15:22:36 +0530
That on 26.06.2017 at unknown time at Best of
Asia Restaurants, Civil Lines Delhi as well as near
the Car parking of said restaurant, within the
jurisdiction of PS Civil Lines, you had made physical
contact and advances involving unwelcome and
explicit sexual overtures, by pressing her breasts and
touching the complainant, namely, ‘S’ inappropriately
and thereby committed an offence punishable U/s
354A IPC within my cognizance.
Secondly, on the above said date, time and place,
you intimidated the complainant, namely, ‘S’ with
threat to her life and reputation and thereby
committed an offence punishable U/s 506 IPC within
my cognizance.
And I hereby direct that you be tried on the said
charge…”
(Emphasis supplied)
2.4. Markedly, respondent no. 2 pleaded not guilty to the
aforesaid charges and claimed trial. Relevantly, during the course
of trial, prosecution examined 02 (two) witnesses, i.e.,
PW-1/complainant/prosecutrix/appellant (‘SA’); and
PW-2/Inspector Gurdeep Kaur. Correspondingly, on 26.09.2023,
respondent no. 2 admitted the genuineness of registration of FIR
No. 247/21, PS. Civil Lines (as Ex. A-1); Certificate under
Section 65B of the Indian Evidence Act, 1872 (hereinafter
referred to as the ‘Evidence Act‘) as Ex. A-2; and genuineness of
statement of the appellant, recorded under Section 164 Cr.P.C. (as
Ex. A-3), without prejudice to his/respondent no. 2’s rights, in
terms of the provisions under Section 294 Cr.P.C., leading to the
dispensation of corresponding witnesses by the Ld. Trial Court.
Subsequently, on conclusion of prosecution evidence, recording
of statement of respondent no. 2 under Section 313 Cr.P.C. on
09.04.2024, as well as on conclusion of arguments by/on behalf
of the parties, as aforementioned, the Ld. Trial Court vide
impugned judgment, acquitted respondent no. 2 of the offence(s)
punishable under Sections 354A/506 IPC, as noted hereinabove.
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3. Ld. Counsel for the appellant vehemently contended
that the impugned judgment and order were passed by the Ld.
Trial Court on mere conjunctures, surmises and in contravention
of the settled principles of law, deserving their setting aside at the
outset. As per the Ld. Counsel, the impugned judgment is
incorrect both on facts as well as in law, making the same liable
to be set aside at the outset. It was further submitted that the Ld.
Trial Court erred in not appreciating the facts and circumstances
of the present case, nor the submissions of the appellant. Further,
as per the Ld. Counsel, in case the impugned judgment is
permitted to stand, grave justice and irreparable loss would
accrue to the complainant/victim/appellant. Correspondingly, as
per the Ld. Counsel, the prosecution proved its case beyond
reasonable doubt against respondent no. 2, despite which, the Ld.
Trial Court erroneously granted benefit of doubt to respondent
no. 2, disregarding the infinite lacunae in the defence put forth by
respondent no. 2. In this regard, Ld. Counsel further fervently
argued that while passing the impugned judgment, Ld. Trial
Court failed to consider the sterling testimony of the appellant. In
particular, as per the Ld. Counsel, the Ld. Trial Court failed to
appreciate that the appellant made clear and specific allegations
of molestation and threatening to kill against respondent no. 2 in
her FIR as well as her statement, recorded in terms of the
provisions under Section 164 Cr.P.C. and apart from the same,
the appellant also corroborated/supported her version in her
deposition before the Ld. Trial Court. It was further argued that
the Ld. Trial Court also failed to appreciate that the appellant in
her examination in chief, correctly identified respondent no. 2
and affirmed that on 26.06.2017, respondent no. 2 called to meet
her, inducing her that upon her failure to meet the said ultimatum,
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ABHISHEK GOYAL
GOYAL Date:
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respondent no. 2 would reach at appellant’s house. Subsequently,
as per the Ld. Counsel, when the appellant reached at Best of
Asia Restaurant at Civil Lines and sitting there, respondent no. 2
touched her hand and when the appellant endeavored to
withdraw, noticing wrong intentions on respondent no. 2’s part,
respondent no. 2 followed the appellant in the parking area and
molested her/the appellant by touching her breast and thereafter,
on appellant’s objecting to the said conduct, respondent no. 2,
pushed the appellant, leading to her/appellant’s sustaining injury
on her right elbow.
3.1. Ld. Counsel for the appellant further submitted that
the Ld. Trial Court wrongly placed reliance on the complaint
dated 18.02.2020, which was got lodged by the appellant vide
DD No. 34AB to DCP North Civil Lines, while acquitting
respondent no. 2. In this regard, Ld. Counsel asserted that the Ld.
Trial Court failed to appreciate that the said complaint was also
made against one Neeraj Sharma as well as respondent no. 2 and
apart from the same, the appellant had levelled the allegations of
respondent no. 2 seeking sexual favour from the appellant. As per
the Ld. Counsel, the testimonies of all the prosecution witnesses,
i.e., PW-1 and PW-2 are trustworthy and corroborative with each
other and that the prosecution has been able to prove its case
beyond a shadow of doubt against respondent no. 2, despite
which, it was averred that the Ld. Trial Court erroneously passed
an order/judgment of acquittal of respondent no. 2. It was further
vehemently argued that the Ld. Trial Court wrongly concluded
that the case of the prosecution was not free from doubt and
suffered with improvements and contradictions. On the contrary
as per the Ld. Counsel, the appellant has given the necessary and
relevant details in her testimony and also upon being questioned
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ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2025.07.04
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in her cross examination by/on behalf of respondent no. 2, which
shows that there was no occasion for any improvement or
contradiction, as otherwise noted. It was further submitted that
the testimony of the appellant went unchallenged and even
though she was subjected to rigorous cross examination, the
appellant stood her ground and her statement could not be
wavered. Ld. Counsel further submitted that the Ld. Trial Court
failed to appreciate the settled law that conviction of an accused
can be based on the sole testimony of a prosecutrix and in the
instant case, the testimony of appellant was categorical in respect
of the fact of commission of offence upon her by respondent
no.2.
3.2. Ld. Counsel further strenuously contended that the
statement of appellant has been natural and consistent with the
version of the prosecutrix qua respondent no. 2 and that she
withstood the rigours of cross examination. It was reiterated that
solitary evidence of the appellant is sufficient in the instant case
to reach a conclusion of guilt of respondent no. 2, which fact has
not been duly considered by the Ld. Trial Court. It was further
submitted by the Ld. Counsel that the Ld. Trial Court even erred
in not framing charges under Section 354B IPC despite the fact
that the allegations under the FIR as well as the appellant’s
statement under Section 164 Cr.P.C. prima facie disclosed the
ingredients of the said offence. Correspondingly, it was argued
that the Ld. Trial Court did not properly appreciate the law on the
point of delay in registration of FIR and even failed to consider
that, even otherwise, the delay if any, was properly explained by
the appellant before the Ld. Trial Court. In this regard, Ld.
Counsel further asserted that the Ld. Trial Court did not consider
that the delay in registration of FIR was neither deliberate nor
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ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2025.07.04
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intentional on the part of the appellant, rather, attributed to the
reason of persistent threat met out by respondent no. 2 to the
appellant. Further, as per the Ld. Counsel, sexual offences against
women are violative of their fundamental right under Article 21
of the Constitution of India/Constitution and that the courts are
obligated to treat search offences sternly, severely and rigorously.
It was further asserted by the Ld. Counsel that the impugned
judgment ignores material facts and circumstances and the Ld.
Trial Court, did not apply his judicial mind while reaching a
finding of acquittal of respondent no. 2 from such serious
allegations. Accordingly, it was entreated that the impugned
judgment be set aside and respondent no. 2 be convicted and
sentenced of the charges levelled against him. In support of the
said contentions, reliance was placed upon the decisions in;
Hariprasad @ Kishan Sahu v. State of Chhattisgarh, Crl. Appeal
No. 1182/2012, dated 07.11.2023(Hon’ble Supreme Court); and
Ravinder Kumar& Anr. v. State of Punjab, AIR 2001 SC 3570.
4. Per contra Ld. Addl. PP for the State submitted that
the impugned judgment 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.
Concomitantly, it was submitted by the Ld. Addl. PP for the State
no grounds for any indulgence or relaxation are made out by the
appellant. Accordingly, Ld. Addl. PP for the State submitted that
the present appeal deserves to be dismissed at the outset.
4.1. Ld. Counsel for respondent no. 2/accused,
vehemently contended that present appeal is not maintainable
under Section 378 Cr.P.C. before this Court, besides, it was
asserted that the instant appeal was filed beyond the statutory
period of limitation. Ld. Counsel further submitted that, even
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ABHISHEK GOYAL
GOYAL Date:
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otherwise, no irregularity can be attributed to the impugned
judgment, which was passed by the Ld. Trial Court after due
consideration of facts and circumstances brought on record. It
was further submitted that the instant appeal has been filed by the
appellant with malafide intentions and ulterior motives to harass
and humiliate respondent no. 2. In this regard, Ld. Counsel
submitted that the Ld. Trial Court under the impugned judgment
specifically observed the factum of the FIR being registered with
a delay of four years, without tendering any plausible reason for
such delay. Correspondingly, it was submitted that the Ld. Trial
Court gave due consideration to the fact that the appellant in the
present case got registered, DD No. 34B at PS. Civil Lines and a
compromised deed dated 10.07.2020 was executed between
respondent no. 2’s sister-in-law and the appellant. As per the Ld.
Counsel, nowhere in the said proceedings the appellant made any
alleged of any incident by respondent no. 2, belying the case
sought to be subsequently built by the appellant in the instant
case/FIR. Further, as per the Ld. Counsel, the Ld. Trial Court
elaborately discussed and evaluated the testimonies of the
prosecution witnesses brought forth on record to reach a
conclusion that the same was neither reliable nor convincing to
reach a conclusion of guilt of respondent no. 2. In this regard, Ld.
Counsel further submitted that there are glaring
inconsistencies/incongruities in the testimony of various
witnesses/prosecution witnesses and the prosecution has not been
able to prove its case beyond a pale of doubt against respondent
no. 2. Ld. Counsel further reiterated that the Ld. Trial Court,
while acquitting respondent no. 2, duly applied its judicial mind
and settled judicial precedents, which cannot be faulted in the
facts and circumstances of the present case. Further, as per the
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ABHISHEK GOYAL
GOYAL Date:
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Ld. Counsel, the appellant is not a victim in the instant case, as
otherwise asserted. On the contrary, it was submitted that
respondent no.21 is a victim in the hand of appellant.
Accordingly, Ld. Counsel iterated that the instant appeal is
grossly malicious and devoid of merits, deserving its dismissal.
In support of the said contentions reliance was placed upon the
decision(s) in; Badam Singh v. State of M.P., (2003) 12 SCC 792;
Hakeem Khan & Ors. v. State of M.P., AIR 2017 SC 1723; State
v. Mewa Lal & Ors., 2022/DHC/004404 (DHC); and State (Govt.
of NCT of Delhi) v. Jitender Kumar & Anr., Crl. LP No.
364/2017, dated 06.07.2017 (DHC).
5. The arguments of Ld. Counsel for the appellant, Ld.
Addl. PP for the State as well as that of Ld. Counsel for
respondent no. 2 have been heard and the record(s), including the
Trial Court Record and the written submission/synopsis filed, as
well as the case laws relied upon by the parties, thoroughly
perused.
6. At the outset, this Court deems it apposite to
enunciate the scope of jurisdiction of this Court in an appeal. In
this regard, this Court it is pertinent to outrightly make a
reference to the decision of the Hon’ble Supreme Court in Sadhu
Saran Singh v. State of U.P. & Ors., MANU/SC/0236/2016 ,
wherein the Hon’ble Court, while delving into the ‘ scope an
ambit’ of appellate court’s jurisdiction in an appeal against
acquittal, inter alia noted as under;
“18. Generally, an appeal against acquittal has
always been altogether on a different pedestal from
that of an appeal against conviction. In an appeal
against acquittal where the presumption of innocence
in favour of the accused is reinforced, the appellate
Court would interfere with the order of acquittal only
when there is perversity of fact and law. However,
we believe that the paramount consideration of theCA No. 430/2024 SA v. State & Anr. Page 12 of 46
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ABHISHEK GOYAL
GOYAL Date:
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Court is to do substantial justice and avoid
miscarriage of justice which can arise by acquitting
the accused who is guilty of an offence. A
miscarriage of justice that may occur by the acquittal
of the guilty is no less than from the conviction of an
innocent. This Court, while enunciating the
principles with regard to the scope of powers of the
appellate Court in an appeal against acquittal, in the
case of Sambasivan and Ors. v. State of Kerala,
MANU/SC/0356/1998: (1998) 5 SCC 412, has held:
The principles with regard to the scope of the
powers of the appellate Court in an appeal against
acquittal are well settled. The powers of the
appellate Court in an appeal against acquittal are
no less than in an appeal against conviction. But
where on the basis of evidence on record two
views are reasonably possible the appellate Court
cannot substitute its view in the place of that of
the trial Court. It is only when the approach of the
trial Court in acquitting an accused is found to be
clearly erroneous in its consideration of evidence
on record and in deducing conclusions therefrom
that the appellate Court can interfere with the
order of acquittal.
19. This Court, in several cases, has taken the
consistent view that the appellate Court, while
dealing with an appeal against acquittal, has no
absolute restriction in law to review and relook the
entire evidence on which the order of acquittal is
founded. If the appellate Court, on scrutiny, finds that
the decision of the Court below is based on erroneous
views and against settled position of law, then the
interference of the appellate Court with such an order
is imperative.
20. This Court in Chandrappa v. State of
Karnataka, MANU/SC/7108/2007: (2007) 4 SCC
415, after referring to a catena of decisions, has laid
down the following general principles with regard to
powers of the appellate Court while dealing with an
appeal against an order of acquittal:
42. From the above decisions, in our considered
view, the following general principles regarding
powers of the appellate Court while dealing with
an appeal against an order of acquittal emerge:
(1) An appellate Court has full power to review,
reappreciate and reconsider the evidence upon
which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts
no limitation, restriction or condition on exercise
of such power an appellate Court on the evidence
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before it may reach its own conclusion, both on
questions of fact and of law.
(3) Various expressions, such as, ‘substantial and
compelling reasons’, ‘good and sufficient
grounds’, ‘very strong circumstances’, ‘distorted
conclusions’, ‘glaring mistakes’, etc. are not
intended to curtail extensive powers of an
appellate Court in an appeal against acquittal.
Such phraseologies are more in the nature of
‘flourishes of language’ to emphasise the
reluctance of an appellate Court to interfere with
acquittal than to curtail the power of the Court to
review the evidence and to come to its own
conclusion.
(4) An appellate Court, however, must bear in
mind that in case of acquittal, there is double
presumption in favour of the accused. Firstly, the
presumption of innocence is available to him
under the fundamental principle of criminal
jurisprudence that every person shall be presumed
to be innocent unless he is proved guilty by a
competent Court of law. Secondly, the accused
having secured his acquittal, the presumption of
his innocence is further reinforced, reaffirmed
and strengthened by the trial Court.
(5) If two reasonable conclusions are possible on
the basis of the evidence on record, the appellate
Court should not disturb the finding of acquittal
recorded by the trial Court.”
(Emphasis supplied)
7. Correspondingly, the Hon’ble Apex Court in Atley
v. State of U.P., 1955 SCC OnLine SC 51, iterated in respect of
the foregoing as under;
“8. …It is also well settled that the Court of
appeal has as wide powers of appreciation of
evidence in an appeal against an order of acquittal as
in the case of an appeal against an order of
conviction, subject to the riders that the presumption
of innocence with which the accused person starts in
the trial court continues even up to the appellate
stage and that the appellate court should attach due
weight to the opinion of the trial court which
recorded the order of acquittal. If the appellate court
reviews the evidence, keeping those principles in
mind, and comes to a contrary conclusion, the
judgment cannot be said to have been vitiated. (See
in this connection the very cases cited at the Bar,
namely, Surajpal Singh v. State [1951 SCC 1207 :
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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)
8. Quite evidently, from a conjoint reading of the
aforenoted judicial dictates it can be perspicuously deduced that
the jurisdiction of this Court in an appeal extends to
reappreciation of the entire material placed on record of the trial
court and to arrive at an independent conclusion as to whether the
said evidence can be relied upon or not. In fact, as aforenoted,
court(s), while exercising appellate power is not required to
consider the question of law, rather, also question of facts to
affirmatively reach a conclusion of guilt or innocence of an
accused. In fact, it is trite law1 that non-re-appreciation of the
evidence on record in an appeal may affect the case of either the
prosecution or even the accused. Needless to reemphasize that
the appellate court is to be further wary of fact that presumption
of innocence of an accused, even extents until an accused is held
guilty by the final court of appeal. Nonetheless, it is seen from
above that in the instances of appeal against acquittal, appellate
courts have to be cognizant of the fact that in appeal against
acquittal there is ‘double presumption’ in favour of the accused,
i.e., one of fundamental principle of criminal jurisprudence that
every person has to be presumed, innocent unless he is proved
guilty by a competent Court of law. Correspondingly, the accused
having secured his acquittal, the presumption of his innocence is
further reinforced, reaffirmed and strengthened by the trial Court.
9. Therefore, being cognizant of the aforesaid
1
State of Gujarat v. Bhalchandra Laxmishankar Dave, (2021) 2 SCC 735.
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principles, however, before proceeding with the determination of
the rival contentions of the parties, it would be pertinent to
reproduce the relevant provisions under law/IPC, for the purpose
of present adjudication, as under;
“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.
(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.
*** *** ***
503. Criminal intimidation-Whoever threatens
another with any injury to his person, reputation or
property, or to the person or reputation of any one in
whom that person is interested, with intent to cause
alarm to that person, or to cause that person to do any
act which he is not legally bound to do, or to omit to
do any act which that person is legally entitled to do,
as the means of avoiding the execution of such threat,
commits criminal intimidation.
*** *** ***
506. Punishment for criminal intimidation-
Whoever commits, the offence of criminal
intimidation shall be punished with imprisonment of
either description for a term which may extend to
two years, or with fine, or with both.
If threat be to cause death or grievous hurt, etc.–
and if the threat be to cause death or grievous hurt, or
to cause the destruction of any property by fire, or to
cause an offence punishable with death or
imprisonment for life, or with imprisonment for a
term which may extend to seven years, or to impute,
unchastity to a woman, shall be punished with
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imprisonment of either description for a term which
may extend to seven years, or with line, or with
both.”
(Emphasis supplied)
10. Notably, it is observed from a perusal of the above
that Section 354A IPC 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)
use of criminal force upon such a woman with a mens rea
(intention or knowledge) to ‘outrage her modesty’. In this regard,
this Court deems is further apposite to refer to the decision in
Vidyadharan v. State of Kerala, (2004) 1 SCC 215, wherein the
Hon’ble Supreme Court1, while explicating the basic ingredients
of Section 354 IPC, noted as under;
“9. In order to constitute the offence under
Section 354 mere knowledge that the modesty of a
woman is likely to be outraged is sufficient without
any deliberate intention of having such outrage alone
for its object. There is no abstract conception of
modesty that can apply to all cases. (See State of
Punjab v. Major Singh [AIR 1967 SC 63 : 1967 Cri
LJ 1] .) A careful approach has to be adopted by the
court while dealing with a case alleging outrage of
modesty. The essential ingredients of the offence
under Section 354 IPC are as under:
1
Premiya v. State of Rajasthan, (2008) 10 SCC 81.
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(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 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
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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
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
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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 Delhi1 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;
“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)
1
Amit @ Lalu v. State, Crl. Appeal No. 858/2016, dated 25.05.2017 (DHC).
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14. In as much as the applicability/culpability under
Section 506 IPC is concerned, law is trite that in order to attract
the said provision, the prosecution is required to prove that the;
(i) accused threatened some person; (ii) such threat must extend
to causing any injury to his person, reputation or property, or to
the person, reputation or property of someone in whom he was
interested; and (iii) the accused did so with intent to cause alarm
to that person, or to cause that person to do any act which he was
not legally bound to do or omit to do an act which he is legally
entitled to do as a means of avoiding the execution of such threat.
Pertinently, the Hon’ble High Court of Orissa in Amulya Kumar
Behera v. Nabaghana Behera, 1995 SCC Online Ori 317, while
explicating the meaning of the word, ‘ alarm’ used under Section
503/506 IPC, noted as under;
“…The threat must be intended to cause alarm
from which it follows that, ordinarily, it would be
sufficient for that purpose. The degree of such alarm
may vary in different cases, but the essential matter is
that it is of a nature and extent to unsettle the mind of
the person on whom it operates and take away from
his acts that element of free voluntary action which
alone constitutes consent. The case where the threat
produces an alarm is comparatively a simple one, for
all that has then to be proved is that threat was given
and that the alarm was due to the threat: but where
the threat has not that effect, it involves a question
whether it was sufficient to overcome a man of
ordinary nerves. The Court may hold it to be an
empty boast, too insignificant to call for penal
visitation of Section 506. “Intimidate” according to
Webstar’s Dictionary means” (1) to make timid, make
afraid, overawe; (2) force or deter with threats or
violence, cow”. Threat referred to in the Section must
be a threat communicated or uttered with intention of
its being communicated to the person threatened for
the purpose of influencing his mind. Question
whether threat amounts to a criminal intimidation or
not does not depend on norms of individual
threatened if it is such a threat as may overcome
ordinary free will of a man of common firmness.
“Threat” is derived from Anglo-sexam word
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“threotou to life”, (harass). It is the dicleration of an
intention to inflict punishment, loss or pain on
another. “Injury” is defined in Section 44. It involves
doing of an illegal act. If it is made with intention
mentioned in the section, it is an offence. Whether
threat was given with intention to cause alarm to the
person threatened has to be established by evidence
to be brought on record…”
(Emphasis supplied)
15. Significantly, in the aforenoted dictate, the Hon’ble
Court explicitly observed that the mens rea/ intention envisaged
under Section 503/506 IPC must be to cause alarm to the victim
and whether or not such a victim is alarmed, is not of any
consequence. Apropos the present discourse, reference is further
made to the decision of the Hon’ble Supreme Court in Manik
Taneja v. State of Karnataka, (2015) 7 SCC 423 , wherein the
Hon’ble Court, while dealing with the ingredients of offence
under Section(s) 503/506 IPC, inter alia, observed as under;
“11. Section 506 IPC prescribes punishment for
the offence of criminal intimidation. “Criminal
intimidation” as defined in Section 503 IPC is as
under:
“503. Criminal intimidation.–Whoever threatens
another with any injury to his person, reputation or
property, or to the person or reputation of any one in
whom that person is interested, with intent to cause
alarm to that person, or to cause that person to do any
act which he is not legally bound to do, or to omit to
do any act which that person is legally entitled to do,
as the means of avoiding the execution of such threat,
commits criminal intimidation.
Explanation- A threat to injure the reputation of
any deceased person in whom the person threatened
is interested, is within this section.”
A reading of the definition of “criminal
intimidation” would indicate that there must be an act
of threatening to another person, of causing an injury
to the person, reputation, or property of the person
threatened, or to the person in whom the threatened
person is interested and the threat must be with the
intent to cause alarm to the person threatened or it
must be to do any act which he is not legally bound
to do or omit to do an act which he is legally entitled
to do.”
CA No. 430/2024 SA v. State & Anr. Page 22 of 46 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.07.04 15:23:46 +0530 (Emphasis supplied)
16. Consequently, being mindful of the principles
hereinunder noted, this Court would now proceed to deal with the
rival contentions of Ld. Counsel for the appellant as well as that
of Ld. Counsel for respondent no. 2. In this regard, this Court
reiterates that the Ld. Counsel for respondent no. 2 has primarily
challenged the maintainability of the instant appeal by victim, in
contradistinction to an appeal by the State, as well as on the
aspect of limitation. However, in order to deal with the said
contention, this Court deems it apposite to reproduce the
provision under Section 372 Cr.P.C., as under;
“372. No appeal to lie unless otherwise provided-
No appeal shall lie from any judgment or order of a
Criminal Court except as provided for by this Code
or by any other law for the time being in force.
Provided that the victim shall have a right to
prefer an appeal against any order passed by the
Court acquitting the accused or convicting for a
lesser offence or imposing inadequate compensation,
and such appeal shall lie to the Court to which an
appeal ordinarily lies against the order of conviction
of such Court.”
(Emphasis supplied)
17. Quite evidently, it is observed from above that the
law/Cr.P.C., provides for an explicit right to a victim to file/prefer
an appeal against any order passed by the Court, “acquitting the
accused or convicting for a lesser offence or imposing inadequate
compensation” and that such an appeal lies in the Court to which
an appeal ordinarily lies against the order of conviction of such
court. Undoubtedly, there is a limitation in the rights of
complainant to prefer an appeal against acquittal, as envisaged
under Section 378 Cr.P.C. However, the superior courts have
clarified1 that a victim is not required to obtain a leave, as
1
Naval Kishore Mishra v. State of U.P. & Ors., Criminal Appeal No. 979 of 2019, dated 05.07.2019 (SC).
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envisaged under Section 378 Cr.P.C. and as a corollary, an
appellate court cannot dismiss the appeal on the said ground.
Reference in this regard is further made to the decision of the
Hon’ble Supreme Court in Mallikarjun Kodagali (Dead), Rep.
through LRs v. State of Karnataka & Ors.,
MANU/SC/1165/2018, wherein the Hon’ble Court, while
exhaustively evaluating various contrasting dictates of several
High Court, explicated the law in respect of the foregoing, as
under;
“76. Putting the Declaration to practice, it is quite
obvious that the victim of an offence is entitled to a
variety of rights. Access to mechanisms of justice
and redress through formal procedures as provided
for in national legislation, must include the right to
file an appeal against an order of acquittal in a case
such as the one that we are presently concerned with.
Considered in this light, there is no doubt that the
proviso to Section 372 of the Code of Criminal
Procedure must be given life, to benefit the victim of
an offence.
77. Under the circumstances, on the basis of the
plain language of the law and also as interpreted by
several High Courts and in addition the resolution of
the General Assembly of the United Nations, it is
quite clear to us that a victim as defined in Section
2(wa) of the Code of Criminal Procedure would be
entitled to file an appeal before the Court to which an
appeal ordinarily lies against the order of conviction.
It must follow from this that the appeal filed by
Kodagali before the High Court was maintainable
and ought to have been considered on its own merits.
78. As far as the question of the grant of special
leave is concerned, once again, we need not be
overwhelmed by submissions made at the Bar. The
language of the proviso to Section 372 of the Code of
Criminal Procedure is quite clear, particularly when
it is contrasted with the language of Section 378(4)
of the Code of Criminal Procedure The text of this
provision is quite clear and it is confined to an order
of acquittal passed in a case instituted upon a
complaint. The word ‘complaint’ has been defined in
Section 2(d) of the Code of Criminal Procedure and
refers to any allegation made orally or in writing to a
Magistrate. This has nothing to do with the lodgingCA No. 430/2024 SA v. State & Anr. Page 24 of 46
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or the registration of an FIR, and therefore it is not at
all necessary to consider the effect of a victim being
the complainant as far as the proviso to Section 372
of the Code of Criminal Procedure is concerned.”
(Emphasis supplied)
18. Here, it is pertinent to note that though the instant
appeal has been preferred by the appellant under Section 378
Cr.P.C./Section 419 BNSS, however, during the course of
proceedings before this Court, Ld. Counsel for the appellant
contended that the present appeal may be treated/considered
under Section 372 Cr.P.C. /Section 413 BNSS (proviso to the said
provision), as an appeal by victim against an order of acquittal. In
this regard, Ld. Counsel fervently argued that due to inadvertence
and oversight, correct legal provision could not be mentioned in
the pleadings of the present appeal, however, since the appeal is
against the order of acquittal of respondent no. 2 by the Ld. Trial
Court, the instant appeal by the appellant, who is a victim in the
instant case, may be considered under Section 372
Cr.P.C./Section 413 BNSS, instead of that under Section 378
Cr.P.C./Section 419 BNSS. In contrast, Ld. Counsel for
respondent no. 2 asserted that since the correct legal provision
has not been mentioned under the pleadings of the present
appeal, the appellant is disentitled to claim any indulgence from
this Court. However, in this regard, this Court unambiguously
notes that the contention of the Ld. Counsel for respondent no. 2
does not find favour with this Court, in view of the repeated
avowals1 of the superior court2 inter alia proclaiming that mere
mentioning of a wrong provision or non-mentioning of any
1
Reference is made to the decision of Hon’ble Supreme Court in Sambhaji & Ors. v. Gangabai & Ors., (2008) 17
SCC 117, wherein the Hon’ble Court inter alia noted, “Processual law is not to be a tyrant but a servant, not an
obstruction but an aid to justice. A Procedural prescription is the handmaid and not the mistress, a lubricant, not a
resistant in the administration of justice…”
2
Pradeep Ram v. State of Jharkhand, (2019)17SCC326; J. Kumaradasan Nair v. Iric Sohan, (2009) 12 SCC 175;
and M.P. Steel Corporation v. Commissioner of Central Excise, MANU/SC/0484/2015.
CA No. 430/2024 SA v. State & Anr. Page 25 of 46 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.07.04 15:24:00 +0530
provision of law would not, by itself, sufficient to take away the
jurisdiction of a Court, if it is otherwise vested in a court of law.
In fact, law is trite that under such situation, while exercising its
power, the courts are required to merely consider whether they
have the source to exercise such jurisdiction/power or not.
Needless to reiterate, the instant appeal has been preferred by/at
the behest of victim/prosecutrix against the order of acquittal of
respondent no. 2/accused in the police case. Quite evidently, such
appeal against acquittal of an accused by a victim, plainly falls
with the purview of the proviso to Section 372 Cr.P.C. and mere
non-mentioning or incorrect mentioning of a legal provision, in
the considered opinion of this Court, would not take away the
jurisdiction of this Court, which is otherwise vested in it, in view
of the said proviso.
19. In so far as the objection of Ld. Counsel for
respondent no. 2 pertaining to limitation in filing/preferring the
present appeal is concerned, this Court observes at the time of
hearing on admission/notice in the instant case, Ld. Counsel for
the appellant submitted that against the impugned judgment
dated 26.07.2024, the instant appeal was filed through e-filing
portal on 31.08.2024. In this regard, Ld. Counsel for the
appellant, placed on record, e-filing receipt of the present appeal,
averring that pursuant to objections raised by the registry of this
Court, the instant appeal could only be listed for hearing on
18.10.2024, post the objections were cleared. Correspondingly,
while referring to the certified copy of the impugned order, Ld.
Counsel for the appellant further asserted that the certified copy
of the instant appeal was applied before the Ld. Trial Court on
23.08.2024, whereupon a certified copy of the impugned
judgment was prepared and supplied to the appellant only on
CA No. 430/2024 SA v. State & Anr. Page 26 of 46
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by ABHISHEK
ABHISHEK GOYAL
GOYAL Date: 2025.07.04
15:24:04 +0530
28.08.2024, and upon exclusion of the said provision, as per the
Ld. Counsel for the appellant, the instant appeal was preferred
within the statutory period of limitation. Needless to mention, the
said submissions were vehemently opposed by the Ld. Counsel
for respondent no. 2. However, this Court again finds itself
difficult to concede with the objection of Ld. Counsel for
respondent no. 2. On the contrary, upon perusal of the material
placed on record, in light of the foregoing submissions, legal
provisions1 as well as judicial precedents2, this Court concurs
with the submissions of Ld. Counsel for the appellant that there
is no delay in filing the present appeal. Even otherwise,
presuming for the sake of argument that there is some delay in
filing the appeal, same, in the considered opinion of this Court
deserves to be condoned in view of the repeated avowals 3 of
superior courts.
20. Reverting now to the merits of the present case, this
Court deems it pertinent here to refer to the deposition/testimony
of the prosecutrix/complainant/PW-1/’SA’ before the Ld. Trial
Court, who deposed about the incident in question. As per the
appellant/prosecutrix, on 26.06.2017, respondent no. 2/ accused
Manish Sharma, who was correctly identified by the appellant
before the Ld. Trial Court, called her/PW-1 and expressed his
willingness to meet with the appellant/PW-1. PW-1 further
proclaimed that when she inquired respondent no. 2, the purpose
of said proposed meeting, respondent no. 2 is asserted to have
1
Section 12(2) of the Limitation Act, which inter alia provides that in computing the period of limitation for an
appeal or an application for leave to appeal or for revision or for review of a judgment, “the day on which the
judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or
order appealed from or sought to be revised or reviewed shall be excluded”. (Emphasis supplied)
2
State of Uttar Pradesh v. Maharaj Narain & Ors., 1968 SCR (2) 842: AIR 1968 SC 960.
3
It is a trite law that for the bonafide mistake committed by the counsel, party should not suffer (Ref.: Rafiq v.
Munshilal, (1981) 2 SCC 788: AIR 1981 SC 1400, Shalini Pai & Ors. v. State Bank of Mysore, 2017 SCC OnLine
Mad 37790: AIR 2017 Mad 273). Correspondingly, superior courts have affirmed that whiel condoning delay,
courts must adopt liberal approach ( Esha Bhattacharjee v. Raghunathpur Nafar Academy, (2013) 12 SCC 649; and
State of U.P. v. Satish Chand Shivhare & Brothers, 2022 SCC OnLine SC 2151).
CA No. 430/2024 SA v. State & Anr. Page 27 of 46 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.07.04 15:24:08 +0530
told the appellant to either come and meet him, else
he/respondent no. 2 would visit appellant’s house. As per the
appellant, since she was a single woman and did not meet any
male person in her house, she/the appellant agreed to meet
respondent no. 2 outside. Consequently, the appellant met with
respondent no. 2 in Civil Line at Best of Asia
Restaurant/restaurant. Further, as per the appellant/PW-1, when
they were sitting in the restaurant, respondent no. 2 touched
her/PW-1’s hand and when she/PW-1 took her hand back,
respondent no. 2 is avowed to have asked PW-1 to go at some
isolated place, where he/respondent no. 2 could come close to
her/the appellant. It was further proclaimed by PW-1 in her
testimony that after judging respondent no. 2’s wrong intention,
she stood up from her seat and went down in the parking area.
However, respondent no. 2 is asserted to have followed the
appellant/PW-1 in the parking area and molested her/PW-1 by
touching her/PW-1’s breast. Thereupon, as per PW-1, when she
expressed displeasure on respondent no. 2’s unexpected
approach, respondent no. 2 pushed her/PW-1 and she/PW-1 got
injury on her/PW-1’s right elbow. Correspondingly, as per PW-1,
before she could call anyone, respondent no. 2 ran away from the
spot in his car. It was further deposed by PW-1 that after the said
incident, she/PW-1 was not in her senses for 3-4 (three-four) days
for the reason that respondent no. 2 had threatened her by
declaring, “mai tujhe raato raat ghar se uthva dunga or jaan se
marne ki dhamki di or mujhe pata hai tu ghar par akeli rehti hai
or na mai tumhare paise vapis karne dunga Nirja Sharma se or na
hi mai karunga” (मैं तुझे रातो रात घर से उठा दूंगा और जान से मरने की धमकी
दी और मुझे पता है तू घर पर अके ली रहती है और ना मैं तुम्हारे पैसे वापिस करने
दूंगा निर्जा शर्मा से और ना ही मैं करुं गा). Relevantly, during her
CA No. 430/2024 SA v. State & Anr. Page 28 of 46
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by ABHISHEK
ABHISHEK GOYAL
Date:
GOYAL 2025.07.04
15:24:12
+0530
deposition PW-1 proved her written complaint, given to the SHO,
PS. Civil Line, dated 29.06.2021 as Ex. PW1/A, bearing
her/PW-1’s signatures at point A. PW-1 further proclaimed that
after tendering her complaint, the police officials took her/PW-1
to Tis Hazari Court for the purpose of recording of her/PW-1’s
statement under Section 164 Cr.P.C, which was proved as Ex.
PW1/B (running into 06 pages), bearing PW-1’s signatures at
points A and B. Correspondingly, PW-1 also proved her reply
along with supporting documents, to the notice under Section 91
Cr.P.C., as Ex. PW1/C (Colly.) (running into 36 pages), bearing
PW-1’s signatures at point A.
21. Markedly, in her cross examination by/at the behest
of respondent no. 2, PW-1/complainant/appellant proclaimed as
under;
“XXXXXX by Sh. ***, Ld. Counsel for the
accused.
I am graduate and running a traveling agency
since the year 2006 I am proprietor of the said
traveling agency. I was looking after the booking and
accounts etc., by myself. Accused Manish Sharma
gave his first booking of his father in my traveling
agency on 12.04.2017. It is correct that thereafter
accounts of accused Manish Sharma remained
maintained in my firm for different bookings of
hotels and flights etc., on regular basis. Vol. He
booked in our firm certain flights and hotels for his
son and the payment of the same is still pending. I
sent the WhatsApp messages to accused Manish
Sharma for demanding the due amount against him
for the booking of his son. Again said, it was not for
the booking of his son but it was pendency of amount
for booking of hotel Lalit at the asking of accused
Manish Sharma. Again said, it was the payment of
flight tickets which was not paid to me till date by
accused Manish Sharma. I shown the said whatsapp
message of demand of money to IO during
investigation but now I do not have that message
available with me. I took the screen shot of the said
message and kept with me. I can produce the said
screen shot. I have not brought the same today so it
cannot be shown now. The accused Manish Sharma
CA No. 430/2024 SA v. State & Anr. Page 29 of 46
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ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2025.07.04
15:24:17 +0530
and his sister-in-law namely Neerja Sharma also hold
money of Rs. 12 lacs approximately before the
registration of the said FIR. Vol. Still accused Manish
and Neerja hold me the amount of Rs. 2 lacs.
It is correct that on 18.02.2020, I had lodged a
complaint vide DD No. 34 B to the DCP North Civil
Line and the same was marked HC Sanjay. It is
correct that in the said complaint, I had not
mentioned any factum of going to BOA Restaurant,
touching my hand and touching my breast etc. It is
correct that in the said complaint, I had not
mentioned any threat extended by accused Manish
Sharma.
It is wrong to suggest that I had not mentioned
any fact of sexual advancement, touching hand and
breast and threatening because accused Manish
Sharma never touched me inappropriately nor
extended any threat at any point of time.
It is correct that in pursuant to the afore-
mentioned complaint dated 18.02.2020, compromise
dated 10.07.2020 arrived between me and Neerja and
in pursuant to the same, I received the amount from
Neerj and close the said complaint. Vol. I do not
remember even by the approximation as to how
much amount received from Neerja Sharma. Again
said the said complaint dated 18.02.2020 was not got
closed by me. In the said meeting when the
compromise effected on 10.07.2020, accused Manish
also participated. Again said, accused Manish had not
participated in the said meeting. At this stage, copy
of compromise deed dated 18.02.2020 is now
Ex.PW-1/X-1 bearing the signature of complainant at
point A Even after 10.07.2020, accused Manish used
to give bookings for hotels and flight for himself and
his family members from me and I did my job after
taking money from him and some time on the basis
of credit. Vol. Some amount is still pending from
Manish for the said bookings. It is correct that on
26.10.2018, I opened a new office and on the
celebration of the opening of the said office, I invited
accused Manish Sharma for the same. Again said, it
was not the proper invitation, rather it was a message
sent to him for the same. It is correct that on
23.10.2018, I wished accused Manish for long and
healthy life on his birthday.
It is correct that on 04.11.2019, I got served upon
a legal/demand notice upon the sister-in-law of
accused Manish namely Neerja through my counsel.
It is correct that in the said notice also, I did not
mention the alleged incident dated 26.06.2017 of anyCA No. 430/2024 SA v. State & Anr. Page 30 of 46
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by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.07.04
15:24:21 +0530
sexual advancement or any threat etc.) on
10.07.2020, the financial aspect of settlement
between the parties when Neerja gave me DD of Rs.
5 lacs to me and I got closed the complaint. Vol.
Neerja Sharma did not complied with the other terms
and condition of the said settlement and she gave two
installment Rs. 2 lacs and Rs. 3 lacs that too after
delay that is why the said financial dispute is still
going on between the parties. I requested accused
Manish many time to let my financial accounts be
cleared by his sister-in-law but in vain. The accused
Manish refused to pay a single penny to me and
rather asked his sister-in-law Neerja not to pay any
amount to me. I was not happy when accused Manish
Sharma refused to clear the amount payable by his
sister-in-law. The Neerja Sharma always broken her
promises for returning the amount payable to me and
accused Manish Sharma helping her in her endeavor.
I did not disclose the incident dated 26.06.2017 to
the BOA Staff or the parting person or any other
Manager or guard available there. I was carrying my
mobile phone at that day. I did not make any PCR
call on that day or did not inform any authority in
this regard. Vol. I wanted to make PCR call but
accused ran away from the spot. I did not disclose the
incident dated 26.06.2017 to any of my relative till
date. I had not told anybody including any police
authority etc., about the incident dated 26.06.2017 till
29.06.2021. Vol. There was no use of telling anybody
in this regard. I do not remember when I lastly
received any amount from Neerja Sharma and
Manish Sharma. I cannot tell even by approximation
of year. I did not take any treatment of the injury
received by me on 26.06.2017 from any clinic or
doctor. Vol. I bandaged my elbow and myself at
home and treated the same by my own. I did not tell
any friend or neighbour or staff the reason of injury
and rapping the bandage on my hand for the
treatment. Vol. I did not tell anybody because it was
my problem and who are they who asked me the
reason of having bandage on my hand. It is correct
that I mailed accused Manish Sharma on 28.06.2017
from my mail for providing me tickets for his son’s
air ticket from Bangalore to Delhi.
It is correct that I have not mentioned Ex.
PW-1/A that on 26.06.2017, I received any injury on
my elbow or that accused Manish ran away from the
spot and I did not remained in my senses 3-4 days or
that accused Manish extended threat to me that he
will get me lifted from my home. Vol. I did not
mention the afore-mentioned facts in Ex, PW-1/A
CA No. 430/2024 SA v. State & Anr. Page 31 of 46
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by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.07.04
15:24:25 +0530
however, I want to settle the matter with Neerja and
Manish that is why I did not give much detail in the
said complaint. Again said, the other party was also
wanted to settle the matter. When the other party did
not agree to compromise the matter, the FIR was
lodged in the present case. It is wrong to suggest
accused Manish Sharma had never called me or taken
me to BOA on 26.06.2017 nor he had touched my
hand or my breast nor threatened me any manner. It
is wrong to suggest that accused Manish never
threatened me. It is wrong to suggest that due to the
financial dispute with Neerja Sharma and accused
Manish Sharma I lodged the first complaint in Burari
and thereafter received the amount from Neerja
Sharma. Even after receiving the compromise
amount, I demanded more money from accused
Manish and Neerja and on their refusal, I lodged the
present case in order to settle the financial dispute
with them. It is wrong to suggest that I am deposing
falsely.”
(Emphasis supplied)
22. Germane for the purposes of the present discourse to
further make a reference to the testimony of PW-2/Insp. Gurdeep
Kaur, who deposed in her testimony that on 29.06.2021,
she/PW-2 was posted in the PS. Civil Lines as Sub-Inspector and
on the said day, the complainant/PW-1 reached at the police
station with a hand written complaint (Ex. PW1/A). Thereafter,
as per PW-2, she endorsed the complaint and prepared a tehrir
(Ex. PW2/A), bearing PW-2’s signatures at point A. Further, as
per PW-2, she subsequently, handed over the complaint along
with the tehrir to the Duty Officer, who registered the instant
FIR/FIR No. 247/21. Correspondingly, as per PW-2, the Duty
Officer handed over the computerized copy of the FIR along with
certificate u/s 65B of the Evidence Act to her, which are Ex. A-1
and Ex. A-2, respectively. Further, PW-2 asserted that thereafter,
she along with the complainant went to the spot and prepared a
site plan (Ex. PW2/B) at the instance of the complainant, bearing
PW-2’s signatures at point A. Thereafter, as per PW-2, sheCA No. 430/2024 SA v. State & Anr. Page 32 of 46
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by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.07.04
15:24:28 +0530
recorded a supplementary statement of the complainant and
discharged her. It was further proclaimed by PW-2 that
subsequently on 01.07.2021, she/PW-2 got the statement of the
complainant/PW-1 recorded under Section 164 Cr.P.C. (Ex.
PW2/B) and during the investigation, she/PW-2 also served a
notice under Section 41A Cr.P.C. to respondent no. 2/accused.
Thereafter, on 09.07.2021, as per PW-2, she served a notice
under Section 91 Cr.P.C. to the complainant/PW-1, which is Ex.
PW2/C, bearing PW-2’s signatures at point A and she/PW-2 got
the reply on 21.07.2021 [Ex. PW1/C (colly) (running into 36
pages)]. After recording the statement of witnesses under Section
161 Cr.P.C., PW-2 avowed that she prepared and filed the
chargesheet before the Ld. Trial Court. Pertinently, PW-2 further
correctly identified respondent no. 2 as accused before the Ld.
Trial Court.
23. Notably, in her cross-examination, PW-2 declared as
under;
“XXXXXX by Sh. ***, Ld. Counsel for the
accused.
It is correct that the incident was exactly of
26.06.2017. However, the complaint of the same was
received on 29.06.2021. I was informed about the
legal notice, MoU and the settled complaint between
the prosecutrix and Neerja Sharma (sister-in-law of
the accused). It is correct that the prosecutrix had not
provided me the copy of the MoU, legal notice or the
settled complaint. It is wrong to suggest that I have in
connivance with the prosecutrix concealed the said
documents so as to file the final report against the
accused in the present case. I had though inquired
about the CCTV, however, I did not inquire or serve
any notice as to whether any employees were
acquainted with the facts of the present case. It is
wrong to suggest that I did not make any such
inquires because no such incident had taken place. It
is wrong to suggest that I did not conduct the
investigation of the present case fair and properly. It
is wrong to suggest that I am deposing falsely.”
(Emphasis supplied)
CA No. 430/2024 SA v. State & Anr. Page 33 of 46
Digitally
signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.07.04
15:24:32
+0530
24. Proceeding now with the determination of the rival
contentions of appellant and respondent no. 2 (as well as the
State), this Court deems it apposite to note here that it is a settled
law that conviction for an offence of sexual color/assault, rape,
etc., can be based on the sole testimony of the prosecutrix. In
fact, even on a general principle, it has been recurrently avowed 1
by superior courts in a catena of decisions that there is no legal
impediment in convicting a person on the sole testimony of a
single witness if his version is clear and reliable, reason
underlying the same being; ‘the evidence has to be weighed and
not counted’. Notably so, in the instances of such offences, courts
have even gone on to the extent to appreciate and declare 2 that to
seek corroboration to the testimony of the prosecutrix before
relying upon the same would amount to adding insult to the
injury3 sustained by such victim and have, consequently,
deprecated the said practice. Reference in this regard is made 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 an1
Kusti Mallaiah v. State of A.P., (2013) 12 SCC 680.
2
State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 and Munna v. State of M.P., (2014) 10 SCC 254
3
State of Maharashtra v. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550.
CA No. 430/2024 SA v. State & Anr. Page 34 of 46 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.07.04 15:24:35 +0530
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)
25. Analogously, the Hon’ble High Court of Delhi in
State (NCT of Delhi) v. Pratap Singh, 2016 SCC OnLine Del
3207, in the similar context observed as under;
“17. It is now well-settled that conviction for an
offence of rape/sexual assault can be based on the
sole testimony of prosecutrix, if the same is found to
be natural, trustworthy and worth being relied on. If
the evidence of the prosecutrix inspires confidence, it
must be relied upon without seeking corroboration of
her statement in material particulars…”
(Emphasis supplied)
26. Quite evidently, it is seen from the above that a
conviction of an accused can be premised on the testimony of a
sole witness only when such testimony is ‘sterling 1’ in nature,
which can be relied upon, without any corroboration. Notably,
the term(s), ‘sterling witness’/’sterling testimony’ in criminal
jurisprudence has been repeatedly declared by superior courts to
mean a witness who is2, “worthy of credence, one who is reliable
and truthful.” Reference in this regard is further made to the
decision in Rai Sandeep v. State (NCT of Delhi), (2012) 8 SCC
21, wherein the Hon’ble Supreme Court, catalogued the quality
of a ‘sterling witness’, under the following observations;
“22. …In our considered opinion, the “sterling
witness” should be of a very high quality and calibre
whose version should, therefore, be unassailable. The
court considering the version of such witness should
be in a position to accept it for its face value without
any hesitation. To test the quality of such a witness,
the status of the witness would be immaterial and
what would be relevant is the truthfulness of the1
Bhimapa Chandapa Hosamani & Ors. v. State of Karnataka, (2006) 11 SCC 323.
2
Kuriya v. State of Rajasthan, (2012) 10 SCC 433.
CA No. 430/2024 SA v. State & Anr. Page 35 of 46
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signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.07.04
15:24:39
+0530
statement made by such a witness. What would be
more relevant would be the consistency of the
statement right from the starting point till the end,
namely, at the time when the witness makes the
initial statement and ultimately before the court. It
should be natural and consistent with the case of the
prosecution qua the accused. There should not be any
prevarication in the version of such a witness. The
witness should be in a position to withstand the
cross-examination of any length and howsoever
strenuous it may be and under no circumstance
should give room for any doubt as to the factum of
the occurrence, the persons involved, as well as the
sequence of it. Such a version should have co-
relation with each and every one of other supporting
material such as the recoveries made, the weapons
used, the manner of offence committed, the scientific
evidence and the expert opinion. The said version
should consistently match with the version of every
other witness. It can even be stated that it should be
akin to the test applied in the case of circumstantial
evidence where there should not be any missing link
in the chain of circumstances to hold the accused
guilty of the offence alleged against him. Only if the
version of such a witness qualifies the above test as
well as all other such similar tests to be applied, can
it be held that such a witness can be called as a
“sterling witness” whose version can be accepted by
the court without any corroboration and based on
which the guilty can be punished. To be more
precise, the version of the said witness on the core
spectrum of the crime should remain intact while all
other attendant materials, namely, oral, documentary
and material objects should match the said version in
material particulars in order to enable the court trying
the offence to rely on the core version to sieve the
other supporting materials for holding the offender
guilty of the charge alleged…”
(Emphasis supplied)
27. Consequently, being wary of the aforenoted
principles, when the material/evidence placed on record is
conscientiously evaluated, this Court unwaveringly reaches a
conclusion that the testimony of PW-1 in the instant case cannot
be considered to be of ‘sterling nature’ so as to form the sole
basis of conviction of respondent no. 2 in the instant case. On the
contrary, this Court outrightly records that there are material
CA No. 430/2024 SA v. State & Anr. Page 36 of 46
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by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.07.04
15:24:42 +0530
improvements/variations in PW-1’s deposition, especially during
her cross examination. In this regard, it is observed that PW-1 in
her deposition/cross examination asserted that she had WhatsApp
messaged to respondent no. 2, demanding alleged dues against
him for the booking of his son, however, later on asserted that the
said dues were for the booking of Lalit Hotel, at the instance of
respondent no. 2. Nonetheless, PW-1 again improved her version
to proclaim that the said alleged dues were against the payment
of flight tickets, which were (allegedly) not paid to her/the
appellant by respondent no. 2. Correspondingly, PW-1
proclaimed that she had shown the said WhatsApp message of
demand of money to the IO during the investigation, however,
asserted that she did not have the said messages with her at the
time of her deposition. Concomitantly, there are also
improvements in the testimony of PW-1 regarding the alleged
due amount towards respondent no. 2 and his sister-in-law,
namely, Neerja Sharma. In this regard, it is pertinent to note that
while at one instance, PW-1 asserted that respondent no. 2 and
Neerja Sharma owed her/PW-1 a sum of Rs. 12,00,000/- (Rupees
Twelve Lakhs only) before the registration of FIR and a sum of
Rs. 2,00,000/- (Rupees Two Lakhs only) on the date of her
deposition before the Ld. Trial Court. However, upon being
further cross examined, PW-1 acknowledged that pursuant to
complaint dated 18.02.2020, lodged by her/PW-1 and subsequent
compromise dated 10.07.2020, arrived between her/PW-1 and
Neerja and in pursuant to the same, she/PW-1 had received the
amount from Neerja and closed the said complaint. However,
again, PW-1 changed her stand in her cross examination by
asserting that neither did she/PW-1 remember, even by
approximation, the amount received by her/PW-1 from Neerja
CA No. 430/2024 SA v. State & Anr. Page 37 of 46
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ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2025.07.04
15:24:46 +0530
Sharma nor did she close the complaint dated 18.02.2020.
Another significant improvement in the deposition/cross-
examination of PW-1 is that while she/PW-1 initially asserted
that in the meeting when the compromise was effected on
10.07.2020, respondent no. 2/accused Manish had also
participated, however, went back on said declaration to again
state that respondent no. 2 had not participated in the said
meeting.
28. In so far as the alleged incident in question at the
restaurant on 26.06.2017 is concerned, PW-1 avowed under her
cross-examination that she did not disclose about the said
incident, dated 26.06.2017, to any of the staff of the restaurant or
any of the parking person or any other manager or guard,
available there/at the restaurant. Correspondingly, PW-1 though
affirmed that she was carrying her mobile phone on the said day,
however, confirmed that she made no call to PCR on the said day
nor informed of any authority in this regard. In fact, PW-1 went
ahead to confirm that till the date of her deposition before the Ld.
Trial Court, she had not even informed any of her relatives of
said alleged occurrence. Correspondingly, as per PW-1 she had
not even informed any of the police authorities, etc., about the
incident dated 26.06.2017 till 29.06.2021. Quite peculiarly, the
reasons for PW-1’s not making PCR or informing anyone of the
incident have been asserted by her in her cross examination as,
“…I wanted to make PCR call but accused ran away from the
spot…” and “…There was no use of telling anybody in this
regard…”, respectively. Ergo, under such circumstances, it does
not appeal to the senses of this Court as to what occasioned the
complainant’s/PW-1’s approaching the concerned police officials
on 29.06.2021 for the registration of the instant FIR against
CA No. 430/2024 SA v. State & Anr. Page 38 of 46
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by ABHISHEK
ABHISHEK GOYAL
GOYAL Date: 2025.07.04
15:24:50 +0530
respondent no. 2, especially when nowhere under her deposition
PW-1 proclaimed of any subsequent occurrence, post 26.06.2017
or of any motivating force, constraining her to finally break her
silence on the alleged incident.
29. Strikingly, though, during the course of argument
before this Court, Ld. Counsel for the appellant asserted that the
reason for the appellant’s delayed reporting of the alleged
incident was the ‘alleged threat’ faced by her from respondent no.
2, however, the said submission stands belied from the material
placed on record. In this regard, it is observed that PW-1 even
under her examination-in-chief proclaimed that she was not in
her senses for 3-4 (three-four) days for the reason that she was
threatened by respondent no. 2 of fire consequences by
proclaiming, “mai tujhe raato raat ghar se uthva dunga or jaan se
marne ki dhamki di or mujhe pata hai tu ghar par akeli rehti hai
or na mai tumhare paise vapis karne dunga Nirja Sharma se or na
hi mai karunga” (मैं तुझे रातो रात घर से उठा दूंगा और जान से मरने की धमकी
दी और मुझे पता है तू घर पर अके ली रहती है और ना मैं तुम्हारे पैसे वापिस करने
दूंगा निर्जा शर्मा से और ना ही मैं करुं गा). However, the reason for delay
of around 4 years in reporting of the incident is not forthcoming
from any material placed on record. The same is further
notwithstanding the fact that PW-1, upon being cross examined,
affirmed that in her complaint dated 29.06.2021 (Ex. PW1/A) she
had not disclosed that she was not in her senses for 3-4 (three-
four) days, or that respondent no. 2 had extended threat to her/the
appellant by asserting that he/respondent no. 2 would get
her/appellant lifted from her house. Needless to mention that
PW-1 further affirmed and acknowledged that Ex. PW1/A was
not the first instance, post 26.06.2017, when she had approached
the police authorities. On the contrary, PW-1 admitted that on
CA No. 430/2024 SA v. State & Anr. Page 39 of 46
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ABHISHEK GOYAL
Date:
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15:24:55
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18.02.2020, she/PW-1 had lodged a complaint vide DD No. 34 B
to the DCP North, PS. Civil Line, which was marked HC Sanjay,
however, even under the said complaint, PW-1 admitted that she
had not mentioned of any factum of going to the restaurant or of
respondent no. 2’s touching her/PW-1’s hand and breast, etc.,
prior to the said date. Correspondingly, PW-1 also acknowledged
that under the said complaint, she had not even mentioned of any
threat, extended by respondent no. 2/accused Manish Sharma.
Similarly, PW-1 acknowledged that though on 04.11.2019,
she/PW-1 got served a legal/demand notice upon respondent no.
2’s sister-in-law, namely, Neerja through her/PW-1’s counsel,
however, even under the said notice, she had not mentioned of
the alleged incident dated 26.06.2017 or of any sexual
advancement or any threat, etc., by/at the behest of respondent
no. 2. Clearly, in light of the foregoing, this Court finds it quite
perplexing that the complainant, though, sought resort to legal
recourse against the alleged incident of 26.06.2017 by filing a
complaint (Ex. PW1/A) on 29.06.2021, i.e., after around four
years’ delay, however, the reasons for such delayed reporting
before the concerned police officials are not forthcoming from
the material placed on record. Same is notwithstanding the fact
that, though, this Court is conscious of the settled law 1,
persistently avowed by superior courts that in the cases of
offences of sexual tenor, ordinarily, the family of victim tend to
be hesitant in reporting the matter to the police, lest their life and
family’s reputation may be put to jeopardy and that under such
circumstances, delay in lodging the first information report is
quite a normal phenomenon and cannot be read against a
prosecutrix. However, present is not the case, where the
1
Ramdas v. State of Maharashtra, (2007) 2 SCC 170; and Dildar Singh v. State of Punjab, (2006) 10 SCC 531.
CA No. 430/2024 SA v. State & Anr. Page 40 of 46 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.07.04 15:24:59 +0530
complainant can seek refuge under the said principle in light of
the facts and circumstances brought forth. Appositely, as
aforenoted, not only are there several inconsistencies in the
version put forth by the prosecutrix/complainant/PW-1 in the
instant case, rather, it is not comprehensible as to why the
complainant promptly, failed to report the incidents aimed
towards her by respondent no. 2, when she had already lodged an
earlier complaint on 18.02.2020 vide DD No. 34 B to the DCP
North, PS. Civil Line as well as issued a legal notice dated
04.11.2019 to respondent no. 2’s sister-in-law for alleged
monetary/financial transactions. Consequently, in the instant
case, working on the presumption that the incident actually
transpired on 26.06.2017, unexplained delay in registration of
instant FIR only on 29.06.2021, becomes a vital factor,
discrediting the version put forth by the
complainant/appellant/PW-1, in the instant case. Needless to
observe at this stage, it is trite law1 that delay in loading the FIR
creates a doubt in the prosecution case, if the said delay is not
properly explained. Reference in this regard is made to the
decision in Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1 ,
wherein the Hon’ble Supreme Court, on the aspect of delay in
registration of FIR, remarked as under;
“50. Delay in setting the law into motion by
lodging of complaint in court or FIR at police station
is normally viewed by the courts with suspicion
because there is possibility of concoction of evidence
against an accused. Therefore, it becomes necessary
for the prosecution to satisfactorily explain the delay.
Whether the delay is so long as to throw a cloud of
suspicion on the case of the prosecution would
depend upon a variety of factors. Even a long delay
can be condoned if the informant has no motive for
implicating the accused.”
(Emphasis supplied)
1
Kishan Singh v. Gurpal Singh, (2010) 8 SCC 775 and Jasbir Singh v. State, 2022 SCC OnLine Del 1427.
CA No. 430/2024 SA v. State & Anr. Page 41 of 46 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.07.04 15:25:03 +0530
30. Similarly, in respect of the aforesaid, the Hon’ble
Supreme Court in Jai Prakash Singh v. State of Bihar, (2012) 4
SCC 379, observed as under;
“12. The FIR in a criminal case is a vital and
valuable piece of evidence though may not be
substantive piece of evidence. The object of insisting
upon prompt lodging of the FIR in respect of the
commission of an offence is to obtain early
information regarding the circumstances in which the
crime was committed, the names of the actual
culprits and the part played by them as well as the
names of the eye-witnesses present at the scene of
occurrence. If there is a delay in lodging the FIR, it
loses the advantage of spontaneity, danger creeps in
of the introduction of coloured version, exaggerated
account or concocted story as a result of large
number of consultations/deliberations. Undoubtedly,
the promptness in lodging the FIR is an assurance
regarding truth of the informant’s version. A
promptly lodged FIR reflects the first hand account
of what has actually happened, and who was
responsible for the offence in question…”
(Emphasis supplied)
31. Portentously, another confounding aspect in the
instant case that though, PW-1/appellant levelled serious
allegations against respondent no. 2 of commission of offences
under Sections 354A/506 IPC by him on 26.06.2017, however,
under her cross examination, PW-1 affirmed that she continued
her business and personal relationship with respondent no. 2, way
subsequent to the alleged incident, which is quite unlikely
conduct of a victim of offence in the nature, asserted herein. In
this regard, this Court deems it pertinent to note that
PW-1/appellant under her cross-examination admitted that even
after 10.07.2020, respondent no. 2 used to give bookings for
hotels and flight for himself and his family members from
her/PW-1 and that she/PW-1 did her job, after taking money from
respondent no. 2 and even sometimes on the basis of ‘credit’. In
CA No. 430/2024 SA v. State & Anr. Page 42 of 46
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ABHISHEK GOYAL
GOYAL Date:
2025.07.04
15:25:07 +0530
fact, PW-1 went ahead to proclaim that even at the time of
opening of her office on 26.10.2018, she/PW-1 had invited
respondent no. 2 on the celebration of such opening. However,
PW-1 simply proclaimed again that “…it was not the proper
invitation, rather it was a message sent to him for the same…”
Quite unusually, PW-1 further acknowledged that on 23.10.2018,
she/PW-1 had wished respondent no. 2/accused Manish for long
and healthy life on his birthday, way subsequent to the alleged
incident on 26.06.2017 and prior to reporting of the incident on
29.06.2021, which conduct of the appellant, casts a significant
dent in the version put forth by her/the appellant against
respondent no. 2.
32. Distressingly, there are also material improvements
in the testimony of PW-1 before the Ld. Trial Court in so far as
PW-1 inter alia admitted under her cross-examination that she
had not mentioned under her complaint (Ex. PW-1/A) that on
26.06.2017, she received any injury on her elbow, or that
respondent no. 2/accused Manish ran away from the spot. In fact,
the cross examination of PW-1 accentuates that the dispute
between the appellant on one hand and respondent no. 2 as well
as his sister-in-law, Neerja Sharma pertained to some monetary
transaction, wherein, PW-1 explicitly declared/volunteered under
her cross-examination that she/PW-1 wanted to settle her matter
with Neerja and respondent no.2/Manish and that is why
she/PW-1 did not give much details in her complaint and that
when the other party did not agree to compromise, the
instant/present FIR was got lodged. Concomitantly,
PW-1/appellant further deposed in her cross examination that she
requested respondent no. 2/accused Manish several times to let
her financial accounts be cleared by his/respondent no. 2’s sister-
CA No. 430/2024 SA v. State & Anr. Page 43 of 46 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.07.04 15:25:11 +0530
in-law, however, in vain. Further, as per PW-1, respondent no. 2
refused to pay a single penny to her/PW-1, rather, asked
his/respondent no. 2’s sister-in-law, Neerja not to pay any amount
to her/PW-1 and that she/PW-1 was not happy when respondent
no. 2/accused Manish Sharma refused to clear the amount
payable by his sister-in-law. Clearly, the said facts, considering in
cumulation further accentuate the lacunae in the case put forth by
the prosecution/complainant against respondent no. 2.
Congruently, another distressing factor in the instant case is that
the investigation does not appear to have been fairly conducted in
the instant case. In this regard, it is outrightly noted that despite
PW-2 overtly remarked in her deposition that she prepared site
plan (Ex. PW2/B) at the instance of the complainant/PW-1,
however, it is noted from the record that the said site plan has not
been signed by the complainant nor the reasons for such non-
affixation of complainant’s impression and/or signatures on such
site plan, forthcoming on record. The same is further despite the
fact that nowhere under her deposition, PW-1 asserted of having
accompanied, PW-2 to the site for alleged preparation of site plan
at her/PW-1’s instance. Congruently, though, PW-2 proclaimed in
her testimony that she had, though, inquired about the CCTV at
the alleged site of occurrence, however, affirmed that she/PW-2
made no inquiries or even served any notice as to whether any
employees were acquainted with the facts of the present case.
Quite evidently, no endeavor to join any independent
persons/public persons was made in the instant case, considering
the aforenoted lacunae/inconsistencies/discrepancies in the
version put forth by PW-1. In fact, no independent investigation
appears to have been conducted by PW-2 in the instant case.
33. Conclusively, in light of the foregoing, it is
CA No. 430/2024 SA v. State & Anr. Page 44 of 46
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by ABHISHEK
GOYAL
ABHISHEK
Date:
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reiterated that from the material placed on record and arguments
addressed by/on behalf of the appellant and respondent no. 2, in
the considered opinion of this Court, the prosecution/complainant
has failed to discharge its burden to prove the present case
‘beyond reasonable doubt’ against the respondent no. 2. On the
contrary, in light of the various contradictions, omissions,
lacunae, hereinunder observed, benefit of doubt must accrue in
favour of respondent no. 2. Needless to reiterate, the prosecutrix
has not only made general, sweeping and vague allegations
against respondent no. 2, rather, the conduct of the complainant
inter alia pertaining to delayed reporting of the case; non-
explanation of reasons for approaching the authorities only on
29.06.2021, without any prompting or incident having taken
place on the said date; persistent improvements and
contradictions in the testimony of the appellant; conduct of the
appellant in persevering both professional and personal
relationship with respondent no. 2, way subsequent to the
incident; non-reporting to incident by the appellant even at the
time of registration of complaint dated 18.02.2020 and issuance
of notice dated 04.11.2019; besides considering various lacunae
in investigation as hereinunder noted, in the considered opinion
of this Court, are sufficient to cast a seizable dent in the
prosecution story against respondent no. 2. Needless to mention,
it is trite law1 that the prosecution has to prove the charges
beyond reasonable doubt and the accused should be considered
innocent, till it is established otherwise. It is equally a settled
law2 that in case where two views are possible, the one in favour
of the accused and the other adversely against it, the view
1
Meena v. State of Maharashtra, (2000) 5 SCC 21.
2
Raghunath v. State of Haryana, (2003) 1 SCC 398, Dhan Kumar v. Municipal Corporation of Delhi, (1980) 1
SCC 605 and State of U.P. v. Nandu Vishwakarma, (2009) 14 SCC 501.
CA No. 430/2024 SA v. State & Anr. Page 45 of 46 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.07.04 15:25:18 +0530
favoring the accused must be accepted. Needless to further
mention that though this Court holds highest regard for the
decisions relied upon by the Ld. Counsel for the appellant in
support of appellant’s case, 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.
34. Conclusively, in view of the above discussion, the
present appeal deserves to be rejected/dismissed and is hereby
dismissed. Accordingly, the judgment dated 26.07.2024, passed
by Ld. JMFC (Mahila Court)-04, Central, Tis Hazari Courts,
Delhi in case bearing, ‘State v. Manish Sharma, Cr. Case No.
10371/2021′, arising out of FIR No. 247/2021, PS. Civil Lines,
under Sections 354A/506 IPC, acquitting respondent no. 2 of the
offence(s) punishable under Sections 354A/506 IPC, is hereby
upheld.
35. Trial Court Record be sent back along with a copy
of this order/judgment.
36. Appeal file be consigned to record room after due
compliance.
Digitally signed by ABHISHEK GOYAL ABHISHEK Date: GOYAL 2025.07.04 15:25:24 +0530 Announced in the open Court (Abhishek Goyal)
on 04.07.2025. ASJ-03, Central District,
Tis Hazari Courts, Delhi
CA No. 430/2024 SA v. State & Anr. Page 46 of 46
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