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Pawan Kumar vs State & Anr on 10 October, 2019

* IN THE HIGH COURT OF DELHI AT NEW DELHI

CRL.REV.P. 727/2016CRL.M.A. 14401/2017 (stay)

Judgment Reserved :25.09.2019
Date of Decision : 10.10.2019

IN THE MATTER OF

PAWAN KUMAR ….. Petitioner
Through: Mr. Amit Sharma, Advocate with
Mr. Vaibhav Tomar, Mr. Siddharth Mittal,
Mr. Aditya Bhardwaj Mr. Ziad Ahmed,
Advocates

Versus

STATE ANR ….Respondents

Through: Ms. Radhika Kolluru, APP for State
with SI Sanjay Singh, P.S. Greater Kailash

CORAM:

HON’BLE MR. JUSTICE MANOJ KUMAR OHRI

1. The petitioner was convicted vide judgment dated 21.01.2016
passed by the Metropolitan Magistrate, Mahila Court (South East), Saket
Courts, New Delhi in FIR No.50/2013 registered under Section 354A
IPC at P.S. GK-I. The petitioner was sentenced to SI for 6 months for the
offence under Section 354A IPC along with a fine of Rs.5000/-, in
default of which the petitioner was further directed to undergo SI for two
days.

2. The appeal filed by the petitioner came to be dismissed vide
judgment dated 21.10.2016 passed by the Additional Sessions Judge-04
Special Judge South East, Saket Courts, New Delhi.

CRL.REV.P. 727/2016 Page 1 of 13

3. Briefly, the facts as noted by the trial court are reproduced as
under:-

“…. on 17.04.2013 inside school Kotilya Sarkari Sarvodaya
Bal Vidyalaya, Chirag Enclave, inside the examination hall,
between 2.30 pm to 5.30 pm, the accused made unwelcome
physical contact involving explicit sexual overtures against the
minor victim Ms. X. Further, the accused met the victim
nearby bus stand and uttered certain words towards her
intending to insult her modesty and intrude upon her privacy.

2. As per the complaint of the complainant, on 17.04.2013 she
had her examination of History subject at Kotilya Sarkari
Sarvodaya Bal Vidyalaya, Chirag Enclave. The examination
commenced at about 2.30 pm. There were two invigilators one
of whom was of about 45 years of age with a strong built
(accused). The other was about 30 years of age and was of
thin built. The accused came to her and said that the time was
about to get over and asked her to tie the map. When she
started tying the map, he said that the method of tying the map
is not correct and himself started tying the map. He sat beside
the victim on the desk, on her left side and touched her breast
with his right elbow intentionally. He told her that he could get
her clear the examination. When she started moving away, he
held her hand. She let her hand free from him. Then he gave
his number 8826541465 to the victim and asked her to call him
later. At the time of the incident, the other invigilator was far
away. She was sitting on the last bench of the last row. In the
end, the accused collected her copy and asked her to call him
if she desired. Thereafter she came out of the class and
reached the bus stand of Pampose Enclave. After sometime,
the accused reached there also and started talking about the
examination. He offered her lift to Khanpur but she declined.
She said that her sister was waiting for her at Khanpur red
light and that she would go by herself. The accused then
forced her to go along with him and got an auto stopped. She
declined and boarded a bus and reached Khanpur. The victim
again saw the accused at Khan Pur BRT bus stop but by the
time she met her sister, accused left. She told the entire
incident to her sister and then to her father who called the
PCR. Police reached there and recorded the statement of

CRL.REV.P. 727/2016 Page 2 of 13
victim.”

4. During the trial, the prosecution examined total of 3 witnesses.
The material witnesses examined by the prosecution were the
complainant (PW-1) and Dr. Sanjay Chaturvedi, the Principal of
K.G.S.B. Vidhalaya Chirag Enclave, New Delhi (PW-2). SI Manisha, the
Investigating Officer was examined as PW-3.

5. Learned counsel for the petitioner submitted that the present case
relate to an alleged incident dated 17.04.2013 which occurred when the
complainant was writing her exam. He has assailed the impugned
judgment on the ground that it was passed on the premise that the
complainant was a “minor”. He pointed out various paragraphs in the
impugned judgment where it was repeatedly mentioned that the
complainant was a “minor victim”. He submitted that the complainant
was in fact, a “major” being 20 years of age on the date of the incident.
He also pointed out the testimony of the complainant where it was stated
that at the relevant point of time, she was working in an office at Bhikaji
Cama Place.

6. Learned counsel for the petitioner submitted that although the
charges were framed against the petitioner under Sections 354(A) and
Section509 IPC but he was convicted only under Section 354(A) IPC as the trial
court disbelieved the testimony of the complainant in so far as charge
under Section 509 IPC was concerned.

7. It was next contended that the entire prosecution case was based
on a map, a question paper and the admit card, however neither of it was
proved on the record. He next contended that the entire inculpatory
material was not put to the petitioner when his statement was recorded
under Section 313 CrPC. To buttress his submission, he placed reliance

CRL.REV.P. 727/2016 Page 3 of 13
on the decision rendered in SectionKoli Trikam Jivraj and Anr. v. The State of
Gujarat reported as AIR 1969 Guj 69.

8. It was further contended that the FIR against the petitioner was
motivated as the petitioner had reprimanded the complainant for not
bringing the original admit card at the time of the examination and also
because she attempted to cheat and carried her mobile while writing her
exam, which was objected to by the petitioner.

9. Learned counsel for the petitioner, while referring to various
contradictions and improvements in the testimony of the complainant,
contended that her testimony is neither creditworthy nor reliable. It was
submitted that in her deposition, the complainant did not mention about
her hand being held by the petitioner which was stated in her previous
statement. In her examination-in-chief, the complainant deposed that
after reaching the house, she disclosed the incident to her father who
gave a call to the petitioner as the mobile number was written on the
question paper however, during her cross-examination, she stated that the
police called the petitioner. It was also submitted that the complainant
during her cross-examination admitted that she did not accompany the
police when the police went to the house of the petitioner to apprehend
him however, SI Manisha, the Investigating Officer deposed that the
petitioner was arrested on the identification of the complainant. There
was also some variation about the spot where the complainant got down
after boarding the bus. Whereas in her statement given to the police, she
stated that she boarded the bus and got down at Khanpur, however, in her
deposition, she deposed that after boarding the bus, she reached the
Ambedkar Nagar bus stand.

10. Per contra, learned APP for the State supported the impugned

CRL.REV.P. 727/2016 Page 4 of 13
judgment. She submitted that since the incident occurred inside the
examination hall therefore, no eyewitness could be examined. She
submitted that the mobile number of the petitioner was mentioned in the
FIR itself. It was also submitted that the identity of the petitioner and his
presence at the spot was not disputed during the trial.

11. I have heard learned counsel for the petitioner as well as learned
APP for the State and have also gone through the case records.

12. It is no longer res integra that the sole testimony of a complainant
can be relied upon to convict an accused provided the same is reliable
and creditworthy. SectionIn Lallu Manjhi and Anr. v. State of Jharkhand,
reported as (2003) 2 SCC 401, Supreme Court had classified the oral
testimony of the witnesses into three categories:

“a. Wholly reliable;

b. Wholly unreliable; and
c. Neither wholly reliable nor wholly unreliable.”

13. SectionIn Kanhaiya and Ors. v. State and Ors. reported as 2015 SCC
OnLine Del 7840, while referring to above decision, the court held as
under:-

“12. In the third category of witnesses, the Court has to be
cautious and see if the statement of such witness is
corroborated, either by the other witnesses or by other
documentary or expert evidence. Equally well settled is the
proposition of law that where there is a sole witness to the
incident, his evidence has to be accepted with caution and
after testing it on the touchstone of evidence tendered by other
witnesses or evidence otherwise recorded. The evidence of a
sole witness should be cogent, reliable and must essentially fit
into the chain of events that have been stated by the
prosecution. When the prosecution relies upon the testimony of
a sole eye-witness, then such evidence has to be wholly
reliable and trustworthy. Presence of such witness at the

CRL.REV.P. 727/2016 Page 5 of 13
occurrence should not be doubtful. If the evidence of the sole
witness is in conflict with the other witnesses, it may not be
safe to make such a statement as a foundation of the conviction
of the accused. These are the few principles which the Court
has stated consistently and with certainty. Reference in this
regard can be made to the cases of SectionJoseph v. State of Kerala
(2003) 1 SCC 465; SectionTika Ram v. State of Madhya Pradesh
(2007) 15 SCC 760 and SectionGovindaraju @ Govinda v.
State(2012) 4 SCC 722.”

14. In the present case, besides examining the complainant, the
prosecution did not examine any independent witness despite the fact
that not only the second invigilator but other examinees were also present
in the examination hall where the incident occurred.

15. The defence setup by the petitioner was that he was falsely
implicated as he had objected to the complainant for carrying her mobile
phone to her seat, for not bringing the original admit card as well as for
cheating in the exam. In view of the above, the testimony of the
complainant has to be scrutinised closely and carefully in light of the
inconsistencies and the improvements pointed out by the learned counsel
for the petitioner.

16. The FIR in the present case was registered on the statement of the
complainant. In the statement recorded by the police, the complainant
stated that there were two invigilators in the examination hall. It was also
stated that when the complainant was tying the “map”, the petitioner sat
on her bench and intentionally touched her breast with his right elbow
and started filing the map. The petitioner held her hand and even wrote
his mobile number on the question paper. Thereafter, when the
complainant after coming out of the examination hall went towards the
bus stand, the petitioner followed and offered to drop her at Khanpur.

CRL.REV.P. 727/2016 Page 6 of 13

The complainant replied that her sister was waiting at Red Light of
Khanpur and she could go by herself. However, the petitioner insisted
and stopped one auto but the complainant declined and boarded the bus
and reached Khanpur.

17. In her testimony before the Court, the complainant improved upon
her previous statement and deposed that the petitioner, after sitting next
to her in the examination hall, started telling her the answers to be filled
in the map. She also deposed that the petitioner in fact, started writing the
answers on the map himself. While doing so, the petitioner touched her
breast with his elbow. When the complainant asked as to what he was
doing, the petitioner also touched on her thighs.

18. During cross-examination, the complainant admitted that she did
not complain to the second invigilator who was present in the
examination hall. SI Manisha, the Investigating Officer, during her cross-
examination, stated that she had done enquiries from the other invigilator
i.e., one Devender who did not state anything about the alleged incident.
She deposed that she did not record his statement.

19. Besides the statement of the complainant, the other material to
corroborate could have been either the map that was stated to be partly
filled by the petitioner or the question paper on which the petitioner had
written his mobile number. It is relevant to note that neither the map nor
the original question paper was produced or exhibited during the trial. It
was urged by learned APP for the State that the petitioner did not deny
that the mobile number belonged to him. There is no gainsaying the fact
that the prosecution has to stand on its own legs and is under a bounden
duty to prove its case against the accused. The prosecution did not even
prove that the said mobile number belonged to the petitioner. A look at

CRL.REV.P. 727/2016 Page 7 of 13
the statement of the petitioner recorded under Section 313 Cr.P.C would
reveal that it was not even put to the petitioner that the said mobile
number belonged to him. Further, neither the factum of filling up of the
map nor the writing of mobile number on the question paper was put to
the petitioner.

20. The relevance of putting all the inculpatory material to the accused
was emphasized by the Supreme court in Ranvir Yadav Vs. State of
Biharreported as (2009) 6 SCC 595, where it was held as under:-

“9. “12.The purpose of Section 313 of the Code is set out in its
opening words- ‘for the purpose of enabling the accused
personally to explain any circumstances appearing in the
evidence against him.’ SectionIn Hate Singh, Bhagat Singh v. State of
Madhya Pradesh it has been laid down by Bose, J that the
statements of the accused persons recorded under Section 313
of the Code ‘are among the most important matters to be
considered at the trial’. It was pointed out that:

‘8…..The statements of the accused recorded by the
Committing Magistrate and the Sessions Judge are
intended in India to take the place of what in
England and in America he would be free to state in
his own way in the witness box and that they have to
be received in evidence and treated as evidence and
be duly considered at the trial.’
This position remains unaltered even after the insertion of
Section 315 in the Code and any statement under Section 313
has to be considered in the same way as if Section 315 is not
there.

13. The object of examination under this Section is to give the
accused an opportunity to explain the case made against him.
This statement can be taken into consideration in judging his
innocence or guilt. Where there is an onus on the accused to
discharge, it depends on the facts and circumstances of the
case if such statement discharges the onus.

14. The word ‘generally’ in sub-section (1)(b) does not limit
the nature of the questioning to one or more questions of a
general nature relating to the case, but it means that the

CRL.REV.P. 727/2016 Page 8 of 13
question should relate to the whole case generally and should
also be limited to any particular part or parts of it. The
question must be framed in such a way as to enable the
accused to know what he is to explain, what are the
circumstances which are against him and for which an
explanation is needed. The whole object of the section is to
afford the accused a fair and proper opportunity of explaining
circumstances which appear against him and that the
questions must be fair and must be couched in a form which an
ignorant or illiterate person will be able to appreciate and
understand. A conviction based on the accused’s failure to
explain what he was never asked to explain is bad in law. The
whole object of enacting Section 313 of the Code was that the
attention of the accused should be drawn to the specific points
in the charge and in the evidence on which the prosecution
claims that the case is made out against the accused so that he
may be able to give such explanation as he desires to give.

15. The importance of observing faithfully and fairly the
provisions of Section 313 of the Code cannot be too strongly
stressed:

’30…It is not sufficient compliance to string together a
long series of facts and ask the accused what he has to
say about them. He must be questioned separately
about each material substance which is intended to be
used against him. …The questioningmust therefore be
fair and couched in a form which an ignorant or
illiterate person will be able to appreciate and
understand. Even when an accused person is not
illiterate, his mind is apt to be perturbed when he is
facing a charge of murder. … Fairness therefore
requires that each material circumstance should be put
simply and separately in a way that an illiterate mind,
or one which is perturbed or confused, can readily
appreciate and understand.

xxx

11. Above being the position the appeal deserves to be
allowed. It is a matter of regret and concern that the
trial court did not indicate the incriminating material

CRL.REV.P. 727/2016 Page 9 of 13
to the accused. Section 313 of the Code is not an empty
formality. There is a purpose behind examination
under Section 313 of the Code. Unfortunately, that has
not been done. Because of the serious lapse on the part
of the trial court the conviction as recorded has to be
interfered with. Conviction recorded by the High Court
is set aside. Bail bonds executed to give effect to the
order of bail dated 8.1.2002 shall stand cancelled
because of the acquittal. The appeal is allowed to the
aforesaid extent.”

21. Similarly, in Sujit Biswas Vs. State of Assam reported as (2013)
12 SCC 406, it was held as under:-

“20. It is a settled legal proposition that in a criminal trial, the
purpose of examining the accused person under Section 313
CrPC, is to meet the requirement of the principles of natural
justice i.e. audi alteram partem. This means that the accused
may be asked to furnish some explanation as regards the
incriminating circumstances associated with him, and the
court must take note of such explanation. In a case of
circumstantial evidence, the same is essential to decide
whether or not the chain of circumstances is complete. No
matter how weak the evidence of the prosecution may be, it is
the duty of the court to examine the accused, and to seek his
explanation as regards the incriminating material that has
surfaced against him. The circumstances which are not put to
the accused in his examination under Section 313 CrPC,
cannot be used against him and must be excluded from
consideration. The said statement cannot be treated as
evidence within the meaning of Section 3 of the Evidence Act,
as the accused cannot be cross-examined with reference to
such statement.”

22. Recently, in Samsul Haque Vs. State of Assam reported as 2019
SCC OnLine SC 1093, the Supreme Court reaffirmed the above views.

23. The trial court as well the appellate court relied upon the
suggestion given on behalf of the petitioner to the complainant that she

CRL.REV.P. 727/2016 Page 10 of 13
had already obtained the phone number of the petitioner after leaving the
examination hall and that is how she knew the same. The appellate court
observed that the suggestion essentially goes to show that the petitioner
himself had admitted the possession of his phone number with the
complainant.

24. The question whether a suggestion given by the counsel on behalf
of the accused can be considered as an admission and bind the accused
under Section 18 of Indian Evidence Act came before the Supreme Court
in KoliTrikam Jivraj (supra), where it was held as under:-

“18.Therefore, the accused is entitled to the benefit of the plea
set up by the lawyer but it cannot be said that the plea or
defence which his lawyer puts forward must bind the accused.
The reason is that in a criminal case a lawyer appears to
defend the accused and has no implied authority to make
admissions against his client during the progress of the
litigation either for the purpose of dispensing with proof at the
trial or incidentally as to any facts of the case. See Phipson’s
Manual of Evidence, Eighth Edition Page 134. It is, therefore,
evident that the role that a defence lawyer plays in a criminal
trial is that of assisting the accused in defending his case. The
lawyer has no implied authority to admit the guilt or facts
incriminating the accused. The argument of Mr. Nanavati that
suggestion put by the lawyer of the accused in the cross-
examinations of the prosecution witnesses amounts to an
admission under Section 18 of the Indian Evidence Act cannot
be accepted.”

25. The prosecution has examined Dr. Sanjay Chaturvedi, the then
Principal of the concerned school, who did not state anything about the
incident and rather deposed that he did not receive any complaint either
from the complainant or her family members about any incident. He also
deposed that during his tenure as a Principal of the school, he did not
receive complaint of any type against the petitioner.

CRL.REV.P. 727/2016 Page 11 of 13

26. The trial court disbelieved a part of the statement of the
complainant where it was stated that the petitioner had followed the
complainant up to the bus stand where he allegedly held her hand and
insisted to drop the complainant at her home. As per the complainant’s
deposition, the incident in the examination hall happened towards the end
of the exam where after, she left the examination hall and walked
towards the bus stand. It was narrated as one continuous incident.
However, as stated above, the latter part of the incident has been
disbelieved.

27. In so far as the first part of the incident is concerned, the
prosecution failed to bring on record any corroborating evidence in the
form of the map that was partly filled by the petitioner, the question
paper on which the petitioner allegedly wrote his mobile number or even
by proving that the mobile number belonged to the petitioner.

28. SectionIn Radhu v. State of M.P, reported as (2007) 12 SCC 57, it was
observed as under:

“16. The evidence of the prosecutrix when read as a whole, is
full of discrepancies and does not inspire confidence. The gaps
in the evidence, the several discrepancies in the evidence and
other circumstances make it highly improbable that such an
incident ever took place….”

29. SectionIn Gautam Khanna v. The State (NCT of Delhi) reported as 2015
SCC OnLine Del 11292, it was observed as under:

“21. In the instant case, considering the vital discrepancies,
contradictions and infirmities in the statements of the
prosecution witnesses, it is not safe to convict the appellant on
the sole uncorroborated testimony of the prosecutrix. The
appellant deserves benefit of doubt. The appeal is allowed.
Conviction and sentence awarded by the Trial Court are set
aside. Bail bond and surety bond of the appellant stand

CRL.REV.P. 727/2016 Page 12 of 13
discharged.”

30. In light of the inconsistencies and the improvements made by the
complainant during her deposition and in absence of any corroborating
evidence to support her statement, this court is of the opinion that the
testimony of the complainant does not inspire confidence. The
prosecution has failed to prove its case against the petitioner. The finding
of guilt recorded by the trial court and the appellate court is manifestly
illegal and perverse. Resultantly, the revision petition is allowed. The
petitioner’s conviction is set aside. The bail bonds furnished by the
petitioner are discharged.

31. Copy of this judgment be sent to the trial court along with the
LCR.

(MANOJ KUMAR OHRI)
JUDGE
OCTOBER 10th, 2019
na

CRL.REV.P. 727/2016 Page 13 of 13

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