State Nct Of Delhi vs Danish & Ors.
2019 Latest Caselaw 2264 Del

$~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

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 506/34 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 354/354-A & B IPC 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 354/354-A & B IPC 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 354/354-A & B of the IPC. He submits that even the offences punishable under Section 506/34 IPC are not disclosed from the statement, however, the respondents are

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 323/354A/506/509/34 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 section 161, 164 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

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

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 506/34 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 354/354-A & B of the IPC 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
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