$~57
* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment delivered on: 13.02.2018

+ CRL.REV.P. 643/2017
ABID ALI ….. Petitioner
versus

STATE (NCT OF DELHI) ….. Respondent
Advocates who appeared in this case:

For the Petitioner : Mr. Alamgir, Adv.

For the Respondents : Mr. Arun Kr. Sharma, Addl. PP for
the State with SI Prashant

CORAM:-
HON’BLE MR JUSTICE SANJEEV SACHDEVA

JUDGMENT

13.02.2018

SANJEEV SACHDEVA, J. (ORAL)

1. The nominal roll of the petitioner has been received. The same
is taken on record.

2. The petitioner impugns order dated 19.08.2017 passed by the
appellate court whereby the appellate court while confirming the
judgment on conviction dated 15.12.2017) modified the order on
sentence dated 14.12.2014 of the trial court by reducing the sentence
awarded to the petitioner to undergo Rigorous Imprisonment (RI) for

Crl.Rev. P. 643/2017 Page 1 of 8
a period of one years (reduced from two years) with fine of Rs.
10,000/- and in default to undergo simple imprisonment for two
months (reduced from four months) for the offence committed under
Section 354 IPC and further convicted to undergo sentence of simple
imprisonment for a period of three months under Section 506 IPC.

3. The allegations against the petitioner are that the complainant
visited the petitioner, who is a Tantrik, in relation to the work related
problem of her husband. The complainant visited the petitioner along
with her husband for performing “Jhada ponchhi” (some for form of
magic). It is alleged that the petitioner put a black dupatta on the
complainant and misbehaved with her. At the time when the petitioner
misbehaved with the complainant, the husband was asked to wait
outside. The complainant thereafter immediately reported the matter
to her husband and along with him approached a PCR van parked near
the house of the petitioner, consequent to which the petitioner was
arrested and the subject FIR registered.

4. The trial court after examining the testimony of the prosecution
witnesses held as under: –

“1. Being troubled by tier husband’s work related
problems, the complainant was advised by her neighbour
Ziauddin to visit a tantrik Abid Ali at 5th Pushta. She was
told that Abid All would give her a tabiz and the same
would solve her problems. Acting on the advice, the
complainant alongwith her husband visited Abid All on
12,08.2007. Abid All gave them 9 tabiz for drinking and
asked them to come after one week. On 16.08.2007, both

Crl.Rev. P. 643/2017 Page 2 of 8
the complainant and her husband again visited him.
However, he was not present at home and he came later
at about 03.00 PM Abid All started doing jhada ponchhi
while the complainant was sitting in front of him.
whereas her husband was sitting at a distance. He put a
black dupatta on the complainant and started to touch
her body. He grabbed her breast and started to unbutton
her. He also moved his hands on her stomach, reached
for her salwar put his hand inside her salwar. Then he
thrusted his private part into the complainant’s hand.
When she protested, he threatened to kill her if she
reported the matter. The complainant then went out of
the room and told everything to her husband. The
complainant’s husband approached a PCR Van parked at
the Pushta. The PCR officials took the complainant, her
husband and Abid Ali to the Police Station where the
complainant gave her statement. These facts constitute
the prosecution case and form the basis of registration of
FIR in the present case on the statement dated
16.08.2007 of the complainant, in which the above
mentioned facts have been narrated. The same is Ex.PW-
2/A.

***** ***** *****

11. A perusal of the testimonies of the various
prosecution witnesses reveal that they corroborate the
sequence of events. The prime witness i.e. PW-2 has
testified on the same lines as her earlier compliant
Ex.PW-2/A. She is the only witness to the incident of
16.08.2007. Her husband i.e. PW-3, although not an eye
witness, has fully corroborated the version of PW-2
regarding the visit to the house of accused and the
subsequent events that followed after the complaint
regarding the incident was made. Both the witnesses
have stood the test of cross examination. There is
nothing in the cross examination of PW-2 or PW-3 which

Crl.Rev. P. 643/2017 Page 3 of 8
could cast a doubt on their veracity. Their testimony
inspires confidence. As regards the acts indulged in by
the accused with PW-2, she has testified about each of
the acts on the same lines as her complaint Ex.PW-2/A.

12. As regards the contention of the learned defence
counsel that the versions of PW-2 and PW-3 are full of
contradictions, this argument fails to impress. Whatever
little inconsistencies which appear in the testimony of
PW-2 and PW-3 are minor inconsistencies, which do not
hit at the prosecution case. The nature of work in which
PW-3 was engaged in at the time of incident is not of
relevance. Even as such PW-3 (like PW-2) has stated that
he was disturbed due to certain issues regarding his
business. Whether PW-3 was engaged in the business of
supplying chicken and mutton or selling garments/jeans
is hardly relevant. Mode of transport used for the visit to
the house of accused or number of tabiz given by the
accused is also not relevant. No such suggestion was put
to PW-2 or PW-3 to the effect that the accused is not
involved in tantrik activities. The defence taken by the
accused in his statement recorded u/s 313 Cr. P.C.
regarding false implication by the complainant at the
instance of one Jyoti Arya is a highly absurd defence. It
is difficult to fathom that a woman would put her dignity
at stake only to help another in getting the bail of the
accused cancelled. Even in her cross-examination, PW-2
has denied the suggestion that the accused has been
falsely implicated by her at the instance of Jyoti Arya.
PW-2 did not even know whether Jyoti Arya had
registered any case against the accused. PW-2 even
stated that Jyoti Arya had contacted her after the news of
the present case had been published in the newspaper
and that prior to it, she had never met her.

13. The official witnesses have also corroborated the
chain of events and their testimony is consistent with the

Crl.Rev. P. 643/2017 Page 4 of 8
testimony of PW-2 and PW-3. The testimony of PW-2
clearly establishes that the accused had outraged her
modesty and also threatened her at knife-point, that in
case she narrated the incident to anyone, he shall kill
her. Accordingly, in view of the above discussion and the
consistent testimony of the various prosecution witnesses,
I hold that the prosecution has successfully proved its
case against the accused beyond reasonable doubt.
Accordingly, the accused is convicted for offence u/s 354
IPC and 506 IPC.”

5. The appellate court in the appeal confirmed the finding of fact
and held as under:-

“6. Perusal of the case file makes it clear that the
complainant lady/victim herself as well as her husband
both were examined as PW2 and PW3 respectively and
the rest witnesses are official witnesses. The prosecution
story talks about two visits by the complainant lady and
her husband to the house of the accused (appellant
herein) as on 12.08.2007 and 16.08.2007. Interestingly,
in the entire cross examination of the complainant/PW2,
not even a single suggestion was put to her that no such
visit was paid by them to the accused at his house. As a
matter of fact, even during the cross examination of the
husband of the complainant/PW3, it was not at all
touched upon w.r.t. the first visit i.e. 12.08.2007,
however, a formal suggestion was given regarding the
second/subsequent visit dated 16.08.2007 which was
obviously negated by the witness.

7. It would not be out of context to mention herein
that the offending act/conduct on the part of the
accused/appellant amounting to the offences under
consideration took place as on 16.08.2007 at or about
4.00 pm or so on 16.08.2007. The matter was reported to

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the police immediately on the same day. Hence, there
were minimal or no chances of any sort of concoction.

8. The assailed judgment in its perusal makes it clear
that it is a well reasoned order wherein each and every
minute detail has been touched upon. There is detailed
appreciation of testimony of both the public witnesses i.e.
the complainant herself and her husband. The Ld. Trial
Court duly relied upon the testimony of the
victim/sufferer/eye witness i.e. PW2 as she had
consistently deposed by elaborating upon the every
minute aspect of the allegations. Her husband though
was not an eye witness, yet duly corroborated her
testimony by deposing on the lines as to how his wife
apprised him of the untoward activities of the
accused/appellant. His conduct in taking the victim to the
police on the very day of incident further substantiates
the allegations against the accused/appellant. Their
deposition has duly been discussed by the Ld. Trial Court
and there is nothing such so as to be suggestive of any
major contradictions therein.

9. Moreover, as per the defence, it was a false case in
connivance with one lady namely Jyoti Arya who was
allegedly having some grudge against the
accused/appellant. As this was a specific defence put by
the accused himself, he was required at least to prima
facie lead some cogent evidence in its support. Though,
in the SA u/s 313 Or. P.C, he opted for leading evidence
in defence, yet as a matter of fact, no such defence
witness (including accused himself u/s 315 Cr.P.C) was
examined for the reasons best known to the
accused/appellant. The order sheet dated 13.10.2014
(Trial Court Record) makes it clear that the
accused/appellant after availing two opportunities
himself requested the Court to close the DE as he was not
inclined to lead any defence evidence. Here it is worth

Crl.Rev. P. 643/2017 Page 6 of 8
mentioning that as per the accused’s own admission, the
said lady Smt. Jyoti Arya used to reside in front of the
house of the accused. The complainant/victim lady
categorically deposed in her cross-examination that she
had had no occasion of meeting with said Smt. Jyoti Arya
prior to the present incident and in fact the said lady was
not known to her. It was on the publication of the news in
the newspaper “Dainik Jagran” regarding the present
incident i.e. incident in question that said Smt. Jyoti Arya
came to see her. The complainant /PW2 also placed on
record the copy of the newspaper cutting (Dainik Jagran
dated 18.08.2007) which was placed on record as Mark
A-1 wherein the news of the alleged misdeed of the
accused/appellant had been published under the title of
“MANILA SE CHHED CHHAD MEI TANTRIK
GIRAFTAAR”. The accused could not even remotely and
prima facie establish on record that the complainant was
known to said Smt. Jyoti Arya prior to the incident in
question or that the present case FIR was the result of
any sort of connivance between the two. The testimony of
the 10 and the rest police officials also substantiate the
prosecution version and find due appreciation in the
Trial Court judgment.

10. Thus, it becomes clear that the appellant has failed
to prove that the assailed judgment was faulty on any
account. Thus the assailed judgment is hereby
affirmed.*******”

6. The appellate court was of the view that the sentence awarded
to the petitioner was on the higher side keeping in view the fact that
the proceedings in the impugned case were pending for a period of 10
years. The appellate court considering the totality of the facts and the

Crl.Rev. P. 643/2017 Page 7 of 8
material on record modified the sentence as noticed above and
reduced the period of RI from two years to one year and simple
imprisonment in default of payment of fine reduced from four months
to two months for the offence under Section 354 IPC.

7. The nominal roll indicates that as on date the petitioner has
undergone six months and 10 days of sentence with five months
remaining.

8. Perusal of the judgments passed by the trial court as well as
appellate court and also the testimony of the witnesses placed on
record, shows that the judgments are well reasoned and there is no
infirmity in the concurrent finding of fact returned by the trial court as
confirmed by the appellate court.

9. The petitioner has already been given indulgence by the
Appellate Court by reduction of his sentence. I find no reason to
further reduce the sentence to the period already undergone as is
contended by the learned counsel for the petitioner. There is no
infirmity with the view taken by the courts as noticed above.

10. In view of the above, I find no merits in the petition. The
petition is accordingly dismissed.

SANJEEV SACHDEVA, J
FEBRUARY 13, 2018
‘rs’

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