Robert Gill v. State of U.T., Chandigarh

Mr.J.S.Bedi, Advocate, for the petitioner. Mr.Gautam Kaley, Advocate, for Mr.Rajiv Sharma, Advocate, for the respondent-U.T., Chandigarh. ***** A.N.JINDAL, J: Assailed in this petition is the judgment dated 13.05.2003, passed by Additional Sessions Judge, Chandigarh, dismissing the appeal against the judgment dated 08.11.2001, passed by Judicial Magistrate Ist Class, Chandigarh, convicting and sentencing the petitioner-accused (herein referred as 'the accused') to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.500/- under Section354 IPC. Accused alongwith his wife and two children so as the complainant Mili Sehgal (herein referred as 'the complainant') alongwith his brother and father were residing in the tenanted premises owned by Jang Bahadur Singh Bedi (DW1). There was a litigation between the complainant and their landlord Jang Bahadur Singh whereas the accused had the cordial relation with the latter, therefore, there were no cordial relations between the accused and the complainant. On 29.08.2000, at Criminal Revision No.1151 of 2003 2 about 11:10 p.m., when the complainant Mili Sehgal had gone to toilet, the accused knocked the door of the toilet from outside, upon which the complainant told to wait. However, as soon as she came out, the accused with an intention to outrage her modesty, attempted to fondle her breast. On raising hue and cry, Kapil Dev Sehgal, father of the complainant, came at the spot. Thereafter, Vishav Dev Sehgal, her brother also came there. In the meantime, the accused had brought a stick. Then the complainant as well as her father and brother went inside. On making the call, Sub Inspector Phool Singh visited the spot, recorded the statement of complainant Ex.PA, on the basis of which FIR was registered by Sub Inspector Malkiat Singh. Investigating Officer arrested the accused; prepared the site plan and recorded the statements of witnesses. Ultimately, challan was presented and the accused was charged under Section 354 IPC. In order to substantiate the charges, the prosecution examined complainant Mili Sehgal (PW1), Kapil Dev Sehgal (PW2) and Phool Singh, Investigating Officer (PW3). When examined under Section 313 Cr.P.C., the accused denied all the allegations and pleaded his false implication stating that since he had good relations with the landlord whereas the complainant party had the litigation, therefore, he was involved in this false case. In defence, the accused examined Jang Bahadur Singh (DW1). Arguments heard. Record perused. The case in hand appears to be motivated one. The contents, as recorded in the FIR Ex.PD on the basis of statement of complainant Ex.PA, is in contradiction with the statements of complainant. Complainant in her Criminal Revision No.1151 of 2003 3 statement Ex.PA has stated that the accused gave a stroke over her breast whereas in her statement in the Court, she has not said a word if the accused did so but she has stated that the accused tried to molest by grappling and touching her breast. First of all there is word-wide difference between grappling and stroking or touching her breast and there is also a lot of difference between “act done” or “attempt to do”. She has stated in Court that the accused made attempt to molest. In her substantive statement, she has stated that the accused had brought the stick from his house which is contradiction of the statement Ex.PA. She has also stated that the accused tried to hit his father with the stick but this fact is also not recorded in the statement Ex.PA. She has stated that her statement was recorded on

28.08.2000 and thereafter she never joined in the investigation but Ex.PA reveals that it was recorded on 29.08.2000. The matter does not end her. The statement of complainant is also contradictory to the statement made by her father Kapil Dev Sehgal (PW2). Complainant Mili Sehgal (PW1) has stated that the accused tried to molest her whereas Kapil Dev Sehgal (PW2) has stated that Mili Sehgal told him that the accused had molested her. Complainant has stated that there was no enmity with the accused prior to the occurrence whereas PW2 Kapil Dev Sehgal has stated that earlier to the occurrence, the accused had been teasing her daughter against which he had persuaded him not to do so. Complainant has stated that the police had arrived in ten minutes after the call whereas PW2 Kapil Dev Sehgal has stated that police had come 15-20 minutes thereafter. Now coming to the statement of Sub Inspector Phool Singh, it is noticed that the proceedings did not take place in the manner as stated by Criminal Revision No.1151 of 2003 4 him. He has stated that he recorded the statements on 28.08.2000 whereas he admits that statement of Vishav Dev Sehgal was recorded on 29.08.2000, however, he admits that the date was recorded mistakenly and he recorded the statement of Vishav Dev Sehgal on 28.08.2000 but the statement reveals that it was recorded on 29.08.2000. The accused is having wife and two children. Admittedly, a common toilet is used by both the tenants and landlord Jang Bahadur Singh Bedi. Had there been any act of molestation on the part of the accused then some marks over the body of the complainant were bound to come which could be subject of medical examination. Admittedly, she was not medically examined or noticed by any doctor even the marks of violence over her clothes were also not examined or noticed by the Investigating Officer. It appears that it was night time and the dispute may have occurred due to use of toilet. The accused appears to under pressure and insisting on vacating the toilet. When the toilet was closed from inside how could he know as to who was inside. Thus, it appears that the accused had no such intention to molest her. Complainant has also deposed in Court that she was not actually molested. The accused is a public servant and he must be knowing the consequences of such acts, therefore, he may be the last person to do like this or if he had done such act he would have not left her just after touching her. Similar observations were made in case Pandurang Sitaram Bhagwat versus State of Maharashtra 2005 (1) RCR (Criminal), which are as under:- “The High Court, in our considered opinion, should not have refused to exercise its revisional jurisdiction on the ground that no question of law had arisen therein in as much as in terms of Section 397 of the Code of Criminal Procedure, the correctness, Criminal Revision No.1151 of 2003 5 legality or propriety of any finding, sentence or order may fall for consideration of the Revisional Court and in particular having regard to the fact that the prosecution case should have been tested from the angle that the trial Judge had acquitted all the three accused persons who are said to have shared a common intention with the Appellant not only in relation to the offences under Section 323, 504 and 506 of the Indian Penal Code but also in relation to the offence committed by the appellant under Section 354 thereof. We, therefore, are of the opinion that having regard to the totality of the fact and circumstances of the case, the appellant is entitled to be given the benefit of doubt.” In the instant case also, when some litigation was between Jang Bahadur Singh Bedi and father of the complainant whereas the accused had the cordial relations with the latter, then obviously, in order to pressure him so that he may not help the landlord Jang Bahadur Singh Bedi, such false allegations could be levelled by the complainant. The approach, as made by the trial Court as well as Appellate Court, is not based on the proper appreciation of evidence and interference at my end has become inevitable. Resultantly, I accept this petition; set aside the impugned judgment and acquit the petitioner of the charges framed against him. He is directed to be set at liberty forthwith. Bail bond/surety bond furnished by him stand discharged. Fine, if any deposited, be refunded. Copy of the judgment be sent to Chief Judicial Magistrate, Chandigarh, for compliance.

21.09.2010 mamta-II (A.N.Jindal) Judge