$~13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 30.04.2019

+ CRL.REV.P. 668/2016
STATE NCT OF DELHI ….. Petitioner
versus
DANISH ORS ….. Respondents
Advocates who appeared in this case:
For the Petitioner : Ms. Meenakshi Dahiya, Addl. PP for the State with
Inspr. Vinay Kumar

For the Respondent : Mr. Jagat Singh Baasta, Adv.

CORAM:-
HON’BLE MR JUSTICE SANJEEV SACHDEVA

JUDGMENT

SANJEEV SACHDEVA, J. (ORAL)
Crl. M.A. 19723/2016 (condonation of delay)

Subject petition has been filed along with the application
seeking condonation of delay of 215 days in filing the petition. It is
contended that initially delay took place on account of obtaining
necessary permission for filing the petition and thereafter delay is
attributed to the counsel. It is contended that the mother of the counsel
was admitted to hospital and as such he could not file the petition
within time.

Learned counsel for the respondent submits that in view of the

CRL.REV.P.668/2016 Page 1 of 5
averments in the application he has no objection of the delay being
condoned.

In view of the above, the delay in filing the petition is
condoned. The application is allowed.

CRL.REV.P. 668/2016

1. Petitioner-State impugns order on charge dated 16.11.2015
whereby the trial court, while framing a charge under Section 506/Section34
IPC against the respondents, has held that there are no allegations of
the offences punishable under Sections 8/12 of the POCSO Act and
Sections 354/Section354-A B SectionIPC and as such discharged the respondents
of the said offences.

2. Learned Addl. PP submits that the trial court has erred in not
framing a charge under Sections 354/Section354-A B SectionIPC and Sections
8/12 of the POCSO Act against the respondents who had committed
the said offences.

3. Learned counsel appearing for the respondents submits that the
statements of the prosecutrix recorded under Section 161 Cr. P.C. and
Section 164 Cr. P.C. and also the testimony of the prosecutrix before
the trial court does not show commission of offence under Sections
8/12 of the POCSO Act or Section 354/Section354-A B of the SectionIPC. He
submits that even the offences punishable under Section 506/Section34 IPC
are not disclosed from the statement, however, the respondents are

CRL.REV.P.668/2016 Page 2 of 5
facing the trial qua the same.

4. Learned counsel for the respondents submits that there is
another FIR on the complaint of the prosecutrix i.e. being FIR No.
1150/2014 under Sections 323/Section354A/Section506/Section509/Section34 IPC read with
Section 8/12 of the POCSO Act at Police Station Khajuri Khas.

5. Statement of the prosecutrix has been recorded before the trial
court. The statement recorded at trial is similar to the statement given
under Section 161 Cr. P.C. and 164 Cr. P.C.

6. Though statement of the prosecutrix recorded before the trial
court, after framing of charge is not to be looked at for the purposes of
ascertaining whether charge should have been framed or not.
However, since the statements under Sectionsection 161, Section164 CrPC are
materially identical to the statement given at trial , reference is being
made to her statement given before the trial court.

7. The prosecutrix in her statement before the trial court has stated
as under:-

“One day on 28.04.2014 at around at about 07.00 p.m.
when I was going to market for purchasing goods for my
mother’s shop passing through the house of accused
Danish and Praveen. Accused persons Danish, Praveen
and Tamannah were standing outside the house of
accused Danish and Praveen and were talking to each
other. When I passed through that place, accused Danish
told to Tamannah to come towards me however, accused
Tamannah firstly refused for the same and said ‘uski
mummy meri complaint kardengi”. But accused Danish

CRL.REV.P.668/2016 Page 3 of 5
instigated accused Tamannah to come to me and said ‘jo
hog hum dekh lenge tu ja’. Thereafter accused
Tamannah came to me and pulled me by holding my
hand which I started crying. Accused Danish and
Praveen started laughing upon me. I said to accused
Danish and Praveen as to why they are doing this to me,
upon which they replied ‘abhi tere sath kiya kya hai,
abhi toh tera jina mushkil kardenge, yaha rehna
mushkil kardenge’. They further said that ‘tune jo
complaint karai hai humare bhai Amit ke khilaf wo
accha nahi kya, ab tera ghar se nikalna mushkil
kardenge’. Accused persons Danish and Praveen also
stated that they will harass me to that extent so that I
shall leave that area and will start residing somewhere
else. Accused persons threatened me. Thereafter I went
to my mother and narrated entire incident to her.
Thereafter my mother came to talk to accused persons
i.e. Danish Praveen, Hasina and Tamannah. The accused
persons misbehaved with my mother also. Thereafter I
along with my mother went to PS where we narrated the
entire incident to police however, no action was taken by
police. Thereafter upon our insistence, police agreed to
register my case and recorded my statement on
27.05.2014 which is Ex. PW1/A bearing my signatures at
point ‘A’ and the case was registered. I had shown the
place to the police and police had prepared the site plan
at my instance which is Ex. PW1/B. Police had got done
my medical examination. I had been produced before the
court also to give statement and the same had been
recorded. Police did not arrest any accused. Accused
persons Danish, Praveen and Hasina are present in the
court today (correctly identified by the witness).”

8. In terms of Section 354 IPC, for an act to constitute an offence,
the act of assault or criminal force to woman should be with the

CRL.REV.P.668/2016 Page 4 of 5
intention of outraging her modesty. Section 354-A IPC requires
conduct specified therein being done with ‘sexual intent’ and Section
354-B IPC requires ‘assault or use of criminal force on a woman with
the intention to disrobe her’. Sections 8/12 of the POCSO Act also
require sexual intention.

9. Perusal of the statement of the prosecutrix clearly shows that
there is no allegation that there was any intention attributed to the
respondents of outraging the modesty of the prosecutrix or doing any
act with any sexual intent or any attempt made to disrobe her.

10. The allegations are that she was harassed and threatened for
which charge has already been farmed under Section 506/Section34 IPC.

11. In my view, there is no infirmity in the finding returned by the
trial court that the statement of the prosecutrix does not ex-facie show
commission of offence under Section 354/Section354-A B of the SectionIPC or
Section 8/12 of the POCSO Act.

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

13. Order dasti under signatures of the Court Master.

APRIL 30, 2019 SANJEEV SACHDEVA, J
‘rs’

CRL.REV.P.668/2016 Page 5 of 5