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Bindu & Anr. vs State Of Nct Of Delhi on 1 July, 2019

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment reserved on: 15th April, 2019
Judgment delivered on: 01st July, 2019

+ CRL.REV.P. 406/2017 Crl. M.A. 9087/2017 (stay)
792/2018 (directions)

BINDU ANR ….. Petitioners
versus

STATE OF NCT OF DELHI ….. Respondent
Advocates who appeared in this case:
For the Petitioner : Ms. Ashu Arora, Adv. with petitioner in person.

For the Respondents: Mr. Hirein Sharma, APP with SI Vikram Singh
Ms. Monica Anand Kumar and Mr. Shalabh Gupta,
Advs. for R-2

CORAM:-
HON’BLE MR JUSTICE SANJEEV SACHDEVA

JUDGMENT

SANJEEV SACHDEVA, J

1. Petitioners impugn order dated 28.03.2017 whereby the
Revisional Court has reversed the order on charge dated 28.01.2017
passed by the Trial Court in case FIR No.944/2015 under Section
323/Section341/Section354/Section509/Section506/Section34 IPC, P.S.Vasant Kunj (North).

2. By order dated 28.01.2017, the Trial Court had discharged the
petitioners of all offences. By the impugned order dated 28.03.2017

CRL.REV. P..406/2017 Page 1 of 10
the Revisional Court set aside the order of the Trial Court discharging
the petitioners and directed framing of a charge under Section 323/Section34
against the petitioners and under Section 509 and Section354 against the
petitioner No.2.

3. Subject FIR was registered on the complaint of one Ms.
Vandana Sharma. Petitioners are the mother and son and neighbours
of the complainant.

4. As per the allegations in the FIR at about 10 PM complainant
was driving back home. When she came to park her car, her neighbour
along with her son (petitioners herein) stepped out from their car and
stood in front of her car and stopped her from parking.

5. It is alleged that the other neighbour, Mr. Dawood was also
parking his car alongside the complainant’s car. She stepped out to
greet her neighbour, Mr. Dawood and requested him to park the car
diagonally to which he agreed and assisted her in parking the car.

6. It is alleged that when the complainant stepped out of the car,
she switched on the phone’s video to record petitioner No.1’s
shouting, abusing and use of vulgar language against her and her
neighbour. While she was video recording, petitioners started
physically assaulting her and tried to snatch her phone.

CRL.REV. P..406/2017 Page 2 of 10

7. It is alleged that petitioner No.1 started pulling her clothes and
hitting her and her son (petitioner No.2) also joined her. It is alleged
that they assaulted and threatened her that she could not video graph
and manhandled her.

8. The complainant further alleges that she heard petitioner No.1
telling her neighbour that she is a whore. The old woman is a whore
and don’t support her. It is alleged that the complainant thereafter
went to her neighbour, the President of the Resident Welfare
Association and apprised him of what had transpired. The other
neighbour, Mr. Dawood was also present and he said that he would be
happy to record what he saw to the police.

9. The FIR further alleges that petitioner No.1 and her family had
been humiliating her for the last 15 years and made other allegations
of harassment in the past.

10. In her subsequent statement given under Section 164 Cr.P.C,
the complainant in addition to what she had stated in her initial
complaint added that she used her phone to video graph, however,
when she got out of the car, petitioner No.1 came and pulled her and
grappled her collar and slapped her. She and her son (petitioner No.2)
tried to snatch the phone and therefore, she could not record anything
that happened. She alleges that when petitioner No.1 was hitting her

CRL.REV. P..406/2017 Page 3 of 10
and abusing her, her son (petitioner No.2) grabbed her and put his
hand inside her T-shirt and assaulted her.

11. The Trial Court in the order dated 28.01.2017 has noticed that
there are contradictions in the statement of the complainant. Earlier
she had stated that petitioner No.1 was shouting, abusing and using
vulgar language against her to her neighbour but did not say the same
in her statement under Section 164 Cr.P.C. She stated that she was
assaulted in the presence of Mr. Dawood and Mr. Dawood denied the
same and has stated that petitioner No.2 was not standing near the
complainant. In view of the clear discrepancy in the statement of the
complainant and the contradiction in the statement given by the
neighbour, Mr. Dawood that petitioner No.2 was not standing close to
her, the Trial Court was of the view that the allegation that petitioner
No.2 has put his hands in the clothes of the complainant appeared to
be doubtful.

12. Trial Court was further of the view that since the quarrel was
regarding car parking, the element of using criminal force or assault of
the nature to outrage the modesty of the complainant was not made
out.

13. Further the allegation that video recording was made by the
complainant was also not substantiated as no such video recording

CRL.REV. P..406/2017 Page 4 of 10
was seized during the course of investigation. Further there was no
medical record and photographs of the alleged injury sustained by the
complainant. Trial Court was of the view that in view of the
improvement in the allegations made by the complainant and the
contradictions in the version of the complainant which become
apparent from the statement of Mr. Dawood who as per the
complainant was present on the spot, there was no ground to give rise
to grave suspicion against the petitioners and accordingly discharged
the petitioners.

14. By the impugned order the Revisional Court set aside the order
of the Trial Court. The Revisional Court held that though the Trial
Court had the power to sift through the evidence but the Trial Court
cannot make a roving inquiry into the pros and cons of the matter and
weigh evidence as if a trial was being conducted.

15. The Revisional Court was of the view that the Trial Court could
not go into the probity of the evidence or the testimonies. The
Revisional Court relied on the statement given under Section 164
Cr.P.C and was of the view that there was prima facie sufficient
evidence to frame charge against the petitioners under Section 323
read with Section 34 IPC and under Section 509 and Section 354 IPC
against petitioner No.1.

CRL.REV. P..406/2017 Page 5 of 10

16. The Supreme Court in SectionUnion of India v. Prafulla. Kumar
Samal, (1979) 3 SCC 4 has held that at the stage of framing of charge
the Trial Court has the power to sift and weigh evidence though for a
limited purpose and finding out whether or not a prima facie case
against the accused has been made out.

17. Charge would be framed not on mere suspicion but on the facts
giving rise to grave suspicion of the accused having committed the
offence.

18. In the present case it may be seen that in the FIR which was
registered on the complaint of the prosecutrix there is no allegation
that petitioner No.2 i.e. son of petitioner No.1 put his hand in her T-
shirt and assaulted her. The allegation leveled is that petitioner No.1
started pulling her clothes and hitting her and her son (petitioner No.2)
also joined in the assault and threatened that she could not video graph
and assaulted and manhandled. There are clear contradictions between
what she has stated in her written complaint to the SHO and in her
statement recorded under Sectionsection 164 Cr.P.C.. There are clear
improvements, wherein she states that petitioner No.2 grabbed her,
put his hand inside her T-shirt and then assaulted her.

CRL.REV. P..406/2017 Page 6 of 10

19. The fact that there is clear improvement in the allegation
leveled against petitioner No.2, so as to bring in the offence under
Section 354 IPC, raises doubt on the version of the complainant.

20. Supreme Court in State Vs. Arun Kumar Anr. 2014 SCC
Online SC 1018 has held that even at the stage of charge, if two views
are possible and one of the views gives rise to suspicion only as
distinct, from grave suspicion, the Court would be empowered to
discharge accused at that stage.

21. Reference may also be had to the judgment of the Supreme
Court in SectionGeorge Ors. vs. State of Kerala Anr.: (1998) 4 SCC
605, wherein, the Supreme Court has held that the statement of the
witnesses recorded under Section 164 Cr.P.C cannot be used as
substantive evidence and can be used for the purposes of contradicting
or corroborating such witness.

22. The first version given to the police is more reliable than an
improved version which comes in later, after the complainant has had
an opportunity to mulling over the facts. Any improvement which is
made in the statement first given is liable to be disregarded, if it
appears to the court that the subsequent statement is unreliable.

23. The complainant herself in her statement has stated that there
was an independent eye witness to the entire incident i.e. Mr.

CRL.REV. P..406/2017 Page 7 of 10
Dawood. However, Mr. Dawood in his statement to the police did not
support the version given by the complainant and has contradicted her
story. Particularly, her improved version, given at the time of
recording of her statement under Section 164 Cr.P.C.

24. No doubt, Mr. Dawood does support that there was a verbal
altercation between the petitioner No. 1 and the complainant,
however, he clearly contradicts the version with regard to physical
assault by the petitioners and also the involvement of petitioner No.2
in physical and verbal assault.

25. It is one thing to say that an independent eye witness in his
statement does not state anything about the incident and another to
state that he does describe the incident but contradicts the version of
the complainant.

26. In the present case the independent eye witness does give his
version of the incident, which, contradicts the version of the
complainant. Not supporting the version of the complainant is distinct
and different from contradicting the version of the complainant. If an
independent eye witness claims not to have witnessed the incident and
does not state anything about the incident and does not support the
version of the complainant, his statement can be disregarded,
however, where an independent eye witness admits to being a witness

CRL.REV. P..406/2017 Page 8 of 10
and makes a statement about the incident but contradicts the version
of the complainant, credence would have to be given to his version,
more so, when the complainant herself has stated that the said eye
witness was present throughout the incident.

27. Mr. Dawood in his statement about the incident has
contradicted the version of the complainant, so, credence would have
to be given to his statement. Further as per the complainant she was
video recording the verbal abuses and assault, however, no such video
recording was produced during investigation by the complainant, to
support her case.

28. The Trial Court had rightly held that there are clear
contradictions in the statement of the complainant particularly with
regard to the involvement of the petitioner No.2 in the incident and
about his alleged conduct of putting his hands in her T-shirt and
assaulting her.

29. The facts as noticed above do not give rise to grave suspicion
against the accused for framing of a charge against them under
Section 354/Section509/Section506/Section323/Section341/Section34 IPC. There is no medical or other
evidence to substantiate the allegations leveled by the complainant.

30. The Revisional Court has clearly committed an error in
interfering with the well reasoned order of the Trial Court holding that

CRL.REV. P..406/2017 Page 9 of 10
no prima facie case giving rise to grave suspicion was made out
against the petitioners.

31. In view of the above, the impugned order dated 28.03.2017 of
the Revisional Court reversing the order on charge dated 28.01.2017
is not sustainable. The same is accordingly set aside.

32. The revision petition is allowed in the above terms. Petitioners
are discharged of the offences.

33. Order dasti under the signature of the Court Master.

SANJEEV SACHDEVA, J

JULY 01, 2019
rk

CRL.REV. P..406/2017 Page 10 of 10

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