Sanjeev Sachdeva JUDGMENT
Sanjeev Sachdeva, J.
1. Petitioners impugn order dated 28.03.2017 whereby the Revisional Court has reversed the order on charge dated 28.01.2017 passed by the Trial Court in case FIR No. 944/2015 under Section 323/341/354/509/506/34 IPC, P.S. Vasant Kunj (North).
2. By order dated 28.01.2017, the Trial Court had discharged the petitioners of all offences. By the impugned order dated 28.03.2017 the Revisional Court set aside the order of the Trial Court discharging the petitioners and directed framing of a charge under Section 323/34 against the petitioners and under Section 509 and 354 against the petitioner No. 2.
3. Subject FIR was registered on the complaint of one Ms. Vandana Sharma. Petitioners are the mother and son and neighbours of the complainant.
4. As per the allegations in the FIR at about 10 PM complainant was driving back home. When she came to park her car, her neighbour along with her son (petitioners herein) stepped out from their car and stood in front of her car and stopped her from parking.
5. It is alleged that the other neighbour, Mr. Dawood was also parking his car alongside the complainant's car. She stepped out to greet her neighbour, Mr. Dawood and requested him to park the car diagonally to which he agreed and assisted her in parking the car.
6. It is alleged that when the complainant stepped out of the car, she switched on the phone's video to record petitioner No. 1's shouting, abusing and use of vulgar language against her and her neighbour. While she was video recording, petitioners started physically assaulting her and tried to snatch her phone.
7. It is alleged that petitioner No. 1 started pulling her clothes and hitting her and her son (petitioner No. 2) also joined her. It is alleged that they assaulted and threatened her that she could not video graph and manhandled her.
8. The complainant further alleges that she heard petitioner No. 1 telling her neighbour that she is a whore. The old woman is a whore and don't support her. It is alleged that the complainant thereafter went to her neighbour, the President of the Resident Welfare Association and apprised him of what had transpired. The other neighbour, Mr. Dawood was also present and he said that he would be happy to record what he saw to the police.
9. The FIR further alleges that petitioner No. 1 and her family had been humiliating her for the last 15 years and made other allegations of harassment in the past.
10. In her subsequent statement given under Section 164 Cr.P.C., the complainant in addition to what she had stated in her initial complaint added that she used her phone to video graph, however, when she got out of the car, petitioner No. 1 came and pulled her and grappled her collar and slapped her. She and her son (petitioner No. 2) tried to snatch the phone and therefore, she could not record anything that happened. She alleges that when petitioner No. 1 was hitting her and abusing her, her son (petitioner No. 2) grabbed her and put his hand inside her T-shirt and assaulted her.
11. The Trial Court in the order dated 28.01.2017 has noticed that there are contradictions in the statement of the complainant. Earlier she had stated that petitioner No. 1 was shouting, abusing and using vulgar language against her to her neighbour but did not say the same in her statement under Section 164 Cr.P.C. She stated that she was assaulted in the presence of Mr. Dawood and Mr. Dawood denied the same and has stated that petitioner No. 2 was not standing near the complainant. In view of the clear discrepancy in the statement of the complainant and the contradiction in the statement given by the neighbour, Mr. Dawood that petitioner No. 2 was not standing close to her, the Trial Court was of the view that the allegation that petitioner No. 2 has put his hands in the clothes of the complainant appeared to be doubtful.
12. Trial Court was further of the view that since the quarrel was regarding car parking, the element of using criminal force or assault of the nature to outrage the modesty of the complainant was not made out.
13. Further the allegation that video recording was made by the complainant was also not substantiated as no such video recording was seized during the course of investigation. Further there was no medical record and photographs of the alleged injury sustained by the complainant. Trial Court was of the view that in view of the improvement in the allegations made by the complainant and the contradictions in the version of the complainant which become apparent from the statement of Mr. Dawood who as per the complainant was present on the spot, there was no ground to give rise to grave suspicion against the petitioners and accordingly discharged the petitioners.
14. By the impugned order the Revisional Court set aside the order of the Trial Court. The Revisional Court held that though the Trial Court had the power to sift through the evidence but the Trial Court cannot make a roving inquiry into the pros and cons of the matter and weigh evidence as if a trial was being conducted.
15. The Revisional Court was of the view that the Trial Court could not go into the probity of the evidence or the testimonies. The Revisional Court relied on the statement given under Section 164 Cr.P.C., and was of the view that there was prima facie sufficient evidence to frame charge against the petitioners under Section 323 read with Section 34 IPC and under Section 509 and Section 354 IPC against petitioner No. 1.
16. The Supreme Court in Union of India v. Prafulla. Kumar Samal, MANU/SC/0414/1978 : (1979) 3 SCC 4 has held that at the stage of framing of charge the Trial Court has the power to sift and weigh evidence though for a limited purpose and finding out whether or not a prima facie case against the accused has been made out.
17. Charge would be framed not on mere suspicion but on the facts giving rise to grave suspicion of the accused having committed the offence.
18. In the present case it may be seen that in the FIR which was registered on the complaint of the prosecutrix there is no allegation that petitioner No. 2 i.e., son of petitioner No. 1 put his hand in her T-shirt and assaulted her. The allegation leveled is that petitioner No. 1 started pulling her clothes and hitting her and her son (petitioner No. 2) also joined in the assault and threatened that she could not video graph and assaulted and manhandled. There are clear contradictions between what she has stated in her written complaint to the SHO and in her statement recorded under section 164 Cr.P.C. There are clear improvements, wherein she states that petitioner No. 2 grabbed her, put his hand inside her T-shirt and then assaulted her.
19. The fact that there is clear improvement in the allegation leveled against petitioner No. 2, so as to bring in the offence under Section 354 IPC, raises doubt on the version of the complainant.
20. Supreme Court in State Vs. Arun Kumar & Anr. MANU/SC/1174/2014 has held that even at the stage of charge, if two views are possible and one of the views gives rise to suspicion only as distinct, from grave suspicion, the Court would be empowered to discharge accused at that stage.
21. Reference may also be had to the judgment of the Supreme Court in George & Ors. vs. State of Kerala & Anr.: MANU/SC/0227/1998 : (1998) 4 SCC 605, wherein, the Supreme Court has held that the statement of the witnesses recorded under Section 164 Cr.P.C., cannot be used as substantive evidence and can be used for the purposes of contradicting or corroborating such witness.
22. The first version given to the police is more reliable than an improved version which comes in later, after the complainant has had an opportunity to mulling over the facts. Any improvement which is made in the statement first given is liable to be disregarded, if it appears to the court that the subsequent statement is unreliable.
23. The complainant herself in her statement has stated that there was an independent eye witness to the entire incident i.e. Mr. Dawood. However, Mr. Dawood in his statement to the police did not support the version given by the complainant and has contradicted her story. Particularly, her improved version, given at the time of recording of her statement under Section 164 Cr.P.C.
24. No doubt, Mr. Dawood does support that there was a verbal altercation between the petitioner No. 1 and the complainant, however, he clearly contradicts the version with regard to physical assault by the petitioners and also the involvement of petitioner No. 2 in physical and verbal assault.
25. It is one thing to say that an independent eye witness in his statement does not state anything about the incident and another to state that he does describe the incident but contradicts the version of the complainant.
26. In the present case the independent eye witness does give his version of the incident, which, contradicts the version of the complainant. Not supporting the version of the complainant is distinct and different from contradicting the version of the complainant. If an independent eye witness claims not to have witnessed the incident and does not state anything about the incident and does not support the version of the complainant, his statement can be disregarded, however, where an independent eye witness admits to being a witness and makes a statement about the incident but contradicts the version of the complainant, credence would have to be given to his version, more so, when the complainant herself has stated that the said eye witness was present throughout the incident.
27. Mr. Dawood in his statement about the incident has contradicted the version of the complainant, so, credence would have to be given to his statement. Further as per the complainant she was video recording the verbal abuses and assault, however, no such video recording was produced during investigation by the complainant, to support her case.
28. The Trial Court had rightly held that there are clear contradictions in the statement of the complainant particularly with regard to the involvement of the petitioner No. 2 in the incident and about his alleged conduct of putting his hands in her T-shirt and assaulting her.
29. The facts as noticed above do not give rise to grave suspicion against the accused for framing of a charge against them under Section 354/509/506/323/341/34 IPC. There is no medical or other evidence to substantiate the allegations leveled by the complainant.
30. The Revisional Court has clearly committed an error in interfering with the well reasoned order of the Trial Court holding that no prima facie case giving rise to grave suspicion was made out against the petitioners.
31. In view of the above, the impugned order dated 28.03.2017 of the Revisional Court reversing the order on charge dated 28.01.2017 is not sustainable. The same is accordingly set aside.
32. The revision petition is allowed in the above terms. Petitioners are discharged of the offences.
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