Ashok Kumar vs Govt. Of Nct Of Delhi
2016 Latest Caselaw 709 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                RESERVED ON : 27th JANUARY, 2016
                                 DECIDED ON : 1st FEBRUARY, 2016

+                          CRL.REV.P.780/2015
      ASHOK KUMAR                                       ..... Petitioner
                           Through :   Mr.Akshat Goel, Advocate with
                                       Mr.Dushyant Tiwari, Advocate.
                           versus
      GOVT. OF NCT OF DELHI                            ..... Respondent
                    Through :          Ms.Meenakshi Dahiya, APP.
       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG
S.P.GARG, J.

1. The instant revision petition has been preferred by the

petitioner - Ashok Kumar to challenge the legality and correctness of a

judgment dated 26.10.2015 of learned Add. Sessions Judge in

Crl.A.No.49/15 arising out of FIR No.22/11 under Section 354 IPC at PS

Dhaula Kuan by which conviction and sentence awarded by the Trial

Court vide orders dated 28.08.2015 and 11.09.2015 were upheld. The

petitioner was convicted by the Trial Court under Section 354 IPC and

sentenced to undergo SI for six months with fine `5,000/-. Revision

petition is contested by the State.

2. Briefly stated, the prosecution case as reflected in the charge-

sheet was that on 01.02.2011 at about 01.00 p.m. at PET/CT, Centre Army

Hospital (Research and Referral) Delhi Cantt, the petitioner outraged the

modesty of the victim „X‟ (assumed name). The incident was reported to

the police on 02.02.2011 by the victim and on her written complaint

(Ex.PW-2/A), Investigating Officer lodged First Information Report.

Statements of the witnesses conversant with the facts were recorded. The

accused was arrested. Upon completion of investigation, a charge-sheet

was filed against him in the Court. To establish its case, the prosecution

examined five witnesses. In 313 Cr.P.C. statement, the petitioner denied

his involvement in the crime and pleaded false implication. He examined

himself as DW-1 in his defence. After hearing rival contentions of the

parties and on appreciation of the evidence, learned Metropolitan

Magistrate convicted the petitioner under Section 354 IPC and sentenced

him as mentioned previously. The petitioner challenged the conviction

and sentence unsuccessfully in Crl.A.No.49/15.

3. Learned counsel for the petitioner urged that the Trial Court

did not appreciate the evidence in its true and proper perspective and erred

to base conviction on the testimonies of interested witnesses. No

independent witness was associated at any stage of investigation. The

complainant / victim had purportedly apprised Dean and the Head of the

Department soon after the occurrence, however, they were not cited and

examined. It being a „Maintenance Day‟ on 01.02.2011, many officials

from Siemens India Ltd. were available at the spot; none of them was

joined in the investigation. The story presented by the complainant is

improbable as she did not raise hue and cry on the way to the Console

area. Delay in lodging the FIR has remained unexplained. Learned Addl.

Public Prosecutor urged that no sound reasons prevail to disbelieve the

victim who had no extraneous consideration to implicate the appellant.

4. The occurrence whereby „X‟, a second year DNB student in

the Department of Nuclear Medicine, Army Hospital (R&R) suffered

physical sexual harassment at the hands of the petitioner occurred at

around 01.00 p.m. on 01.02.2011. In her complaint (Ex.PW-2/A), she

categorically named the petitioner to be the perpetrator of the crime and

assigned a specific and definite role to him. She informed the police that

at around 01.00 p.m. when she requested the petitioner to show her leave

register of the trainees, he told her to come to his office. She went towards

his chamber adjacent to her „Trainee‟ room and he showed her the

register. When she turned towards her „Trainee‟ room, the accused tried to

pull her inside the chamber and also tried to hug and kiss her. She pushed

him away and rushed towards the „Trainee‟ room. However, she was

followed by the accused and he tried to bully and scare her. She

immediately called her husband on phone and it made the accused to

leave.

5. In her Court statement as PW-2, „X‟ proved the version given

to the police at first instance without any variation. She reiterated that

when she was working in PET/CT Department on 01.02.2011 at around

01.00 p.m. she asked Mr.Ashok, department stenographer, regarding the

leave register of resident doctors, the accused asked her : "Madam, come I

will show you the register". She went to the petitioner‟s chamber adjacent

to the resident doctors‟ room. The petitioner showed her the register.

When she was returning to the doctors‟ room, the petitioner pulled her

inside towards his chamber by her left hand and tried to hug and kiss her.

She pulled him back and returned to the doctors‟ room. The petitioner

followed her stopping her way to the exit and terrorised her by saying "do

not dare tell anything to anybody otherwise I will tarnish your image and

nothing would happen to me". She somehow ran towards the corridor but

the petitioner continued to chase her till the „Console‟ area approximately

50 meter away. When she called her husband, the petitioner stopped

terrifying her. She immediately went to the main hospital premises and

informed the Head of the Department. On arrival of her husband

approximately after about 40 minutes, she complained to the Dean of the

Army Hospital. Complaint (Ex.PW-2/A) was lodged on 02.02.2011. In

the cross-examination, she informed that no hue and cry was raised by her

that time as the department was completely empty and there was no one

person who could have come to her help. She further explained that she

could not call 100 as there was no network in her mobile. She fairly

admitted that on that day, she did not go to the police station to lodge the

report. She volunteered to add that it was on the assurance of Dean for

necessary action against the accused, that she waited for a day. She denied

that there was „conflict‟ between her and the accused prior to incident.

She reiterated that the accused had touched her body though there was no

injury.

6. On scanning the testimony of the victim in entirety, it reveals

that she is consistent throughout and no material infirmity could be

extracted in her cross-examination to disbelieve her. She has given

graphic account of the incident. Material facts deposed and proved by her

remained unchallenged and uncontroverted in the cross-examination. No

suggestion was put to her that she had not visited the petitioner‟s room /

chamber to see the leave register at that time or that she was not working

in the PET / CT Centre that day and it was not her working day. The

accused did not deny his presence at the spot at the relevant time. No

ulterior motive was assigned to the complainant to falsely rope him in the

incident. Nothing has surfaced if there was any prior enmity with the

petitioner prompting „X‟ to implicate him. Nothing was elaborated by the

accused as to what was the nature of „conflict‟ between him and the

victim and how it had originated. PW-3 (Dr.Ajay Gopal Vyas) - victim‟s

husband arrived at the spot on getting distress call from his wife at around

02.15 p.m. Nothing was suggested to him in the cross-examination if there

was any previous hostility with the victim on any specific issue. In 313

Cr.P.C. statement for the first time, the petitioner claimed that victim‟s

husband - PW-3 (Dr.Ajay Gopal Vyas) was PG in the year 2008 - 2009

and 2009 - 2010 when he was posted as Office Superintendent in Nuclear

Medicine Department. At that time, „X‟s husband had sought some illegal

favour from him i.e. of disclosing official secrets before hand to which he

had refused. On that, he nurtured grudge against him and when his wife

joined the PG course in 2010, he sought to take revenge through her by

lodging the false complaint. The defence put forward by the petitioner in

313 Cr.P.C. statement deserves outright rejection. No such suggestion was

put to PW-3 (Dr.Ajay Gopal Vyas) in the cross-examination. The

petitioner did not elaborate or explain as to what official secrets were

sought to be disclosed by the victim‟s husband. No complaint whatsoever

was ever lodged by the petitioner against the victim‟s husband on that

score. Beside this, over a trivial issue, the victim is not expected to level

serious allegations of outraging her modesty to put her honour at stake.

7. Delay in lodging the FIR has been duly explained. The victim

had brought it promptly to the knowledge of the appropriate authorities

i.e. Head of the Department and Dean on the same day. She was not

expected to rush to the police station immediately. She waited the

authorities to take suitable action against the accused for a day.

Disciplinary proceedings have been initiated against the petitioner for his

„act‟. Non-joining / non-examination of independent witnesses during

investigation by itself may not give rise to adverse inference against the

prosecution. The victim has categorically stated that at the time of incident

none else was present at the spot. It was vehemently urged on behalf of

the petitioner that it being a „Maintenance Day‟ many officials from

Siemens India Ltd. were available to carry out maintenance / repair work

for the PET-CT and Cyclotron. Reliance has been placed on number of

documents obtained by the petitioner through RTI. The information

sought by the petitioner shows that reception / window remained

functional for the patients in PET-CT on its working days; it also worked

on the „Maintenance Day‟ for the patients who wanted to collect their

reports. It is also informed that „maintenance‟ / repair work for the PET-

CT and Cyclotron is being carried out by service engineers of Siemens

India Ltd. as and when required by them for routine maintenance / break

down of equipments and on an average 3 - 4 members of the company are

deputed in maintenance / repair. It is further admitted that on 01.02.2011

it was a „Maintenance Day‟ in PET-CT Centre. The information collected

by the petitioner through RTI is of no helpful. It appears that the petitioner

did not deliberately sought specific information under RTI Act whether on

01.02.2011 at around 01.00 p.m. any specific individual from Siemens

India Ltd. was on duty for maintenance of any particular equipment. The

petitioner himself did not disclose the name of any such individual who

was available / present at or near the spot, he did not examine any of them

in his defence.

8. Concurrent findings holding the petitioner guilty for

commission of offence under Section 354 IPC have been recorded by the

two Courts below incorporating detailed reasons for arriving at the said

conclusion. The judgment based upon fair appreciation of the evidence

warrant no intervention. The conviction under Section 354 IPC is upheld.

9. The petitioner was sentenced to undergo SI for six months

with fine. Prayer has been made to modify the Sentence Order taking into

consideration the mitigating circumstances. It is informed that there is no

male member in the family and petitioner‟s daughter, a student of 12th

standard is to go to US for studies. In the absence of any male member,

she is unable to fulfil the formalities. The petitioner is in JC since

26.10.2015 and is not a previous convict.

10. No adequate and sound reasons exist to modify the Sentence

Order as the petitioner while working in a reputed institution outraged the

modesty of the victim who unsuspectingly visited him to see the leave

register. The victim was even criminally intimidated and threatened not to

report the incident to anyone. The petitioner was well aware of her

daughter‟s plan to go abroad for studies at the time of incident.

11. The petition lacks merits and is dismissed. Trial Court record

be sent back forthwith with the copy of the order. Intimation be sent to the

Superintendent Jail.

(S.P.GARG) JUDGE FEBRUARY 01, 2016 / tr