State vs Nitu Singh
- Court
- Delhi High Court
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 23.04.2026
Judgment pronounced on: 28.04.2026
+ CRL.A. 265/2018
STATE .....Appellant
Through: Mr. Utkarsh, APP for the State
Versus
NITU SINGH .....Respondent
Through: Mr. Ravinder Mehandra, Advocate
CORAM:
HON'BLE MS. JUSTICE CHANDRASEKHARAN SUDHA
JUDGMENT
CHANDRASEKHARAN SUDHA, J.
1. In this appeal filed under Section 378(1)(b) of the Code
of Criminal Procedure, 1973, (the Cr.P.C.), the State in Sessions
Case No. 81 of 2013 on the file of the Additional Sessions Judge-
01, New Delhi District, Patiala House Courts, New Delhi, assails
the judgment dated 29.01.2015 as per which the sole accused has
been acquitted of the offences punishable under Sections 354A,
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354D of the Indian Penal Code, 1860 (the IPC) and Section 12 of
the Protection of Children from Sexual Offences, 2012 (the
PoCSO Act).
2. The prosecution case is that on 20.03.2013, at about
10:00 PM at 572D, Naraina Village, New Delhi, the accused used
criminal force upon PW2, aged about 17 years, with the intention
to outrage her modesty and followed her with sexual intention to
foster personal interaction repeatedly despite clear indication of
disinterest by PW2. Hence, as per the charge-sheet/final report, the
accused was alleged to have committed the offences punishable
under Sections 354, 354A(i), (v), 354D, 509 IPC and Section 12
of the PoCSO Act.
3. On the basis of Ext. PW2/A FIS of PW2, given on
20.03.2013, crime no. 71/2013, Naraina Police Station, i.e., Ext.
PW1/B FIR was registered by PW1, Sub-Inspector. PW3, Sub
Inspector (SI), was entrusted with the investigation of the case.
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PW3 conducted investigation into the crime and on completion of
the same, filed the charge-sheet/final report alleging commission
of the offences punishable under the aforementioned sections.
4. When the accused was produced before the trial court,
all the copies of the prosecution records were furnished to him, as
contemplated under Section 207 Cr.P.C. After hearing both sides,
the trial court, vide order dated 11.09.2013, framed a charge under
Sections 354A, 354D IPC and Section 12 of the PoCSO Act,
which was read over and explained to the accused to which he
pleaded not guilty.
5. On behalf of the prosecution, PWs. 1 to 3 were
examined and Exts. PW1/A-C, PW2/A-F, PW3/A-D, and PX1
were marked in support of the case.
6. After the close of the prosecution evidence, the accused
was questioned under Section 313(1)(b) Cr.P.C. regarding the
incriminating circumstances appearing against him in the evidence
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of the prosecution. The accused denied all those circumstances and
maintained his innocence. He claimed that he had been falsely
implicated in the case.
7. After questioning the accused under Section. 313(1)(b)
Cr.P.C., compliance of Section 232 Cr.P.C. was mandatory. In the
case on hand, no hearing as contemplated under Section 232
Cr.P.C. is seen done by the trial court. However, non-compliance
of the said provision does not, ipso facto vitiate the proceedings,
unless omission to comply with the same is shown to have resulted
in serious and substantial prejudice to the accused (See Moidu K.
vs. State of Kerala, 2009 (3) KHC 89 : 2009 SCC OnLine Ker
2888 ). Here, the accused has no case that non-compliance of
Section 232 Cr.P.C has caused any prejudice to him.
8. No oral or documentary evidence was adduced by the
accused.
9. Upon consideration of the oral and documentary
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evidence on record, and after hearing both sides, the trial court,
vide the impugned judgement dated 29.01.2015, acquitted the
accused under Section 235(1) Cr.P.C. of the offences punishable
under Sections 354A, 354D IPC and Section 12 of the PoCSO Act.
Aggrieved, the respondent/State has come up in appeal.
10. It was submitted by the learned Additional Public
Prosecutor that the impugned judgment is contrary to the facts and
circumstances of the case. The version of PW2 has remained
consistent. Her testimony has not been discredited in any way.
Minor discrepancies in the testimony of the prosecution witnesses
do not vitiate the case when the core of the prosecution story
stands proved. The incident occurred at about 10:00 PM when
PW2 was alone, clearly demonstrating the intent of the accused.
Further, the conduct of the accused immediately after the incident,
wherein PW2 rushed to her room, bolted the door from inside, and
the accused followed her and repeatedly knocked on the door also
needs to be taken into account. The burden shifted upon the
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accused to prove his innocence as per the statutory presumption
contemplated under Section 29 of the PoCSO Act, which he failed
to discharge. Therefore, he submitted that the impugned judgment
of acquittal be set aside, and the accused be convicted in
accordance with the law.
11. It was submitted by the learned counsel for the
respondent/accused that there is no infirmity in the impugned
judgment calling for an interference by this Court.
12. Heard both sides and perused the records.
13. The only point that arises for consideration in the
present appeal is whether there is any infirmity in the impugned
judgment calling for an interference by this court.
14. I make a brief reference to the oral and documentary
evidence relied on by the prosecution in support of the case. Ext.
PW2/A, the FIS/FIR of PW1 reads thus:-“… On 20.03.2013, I was
studying in my room. At approximately 10:00 PM, I went to the
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bathroom. While I was returning from the bathroom to my room, a
man came up from behind me and grabbed my hand. I later
learned his name and address as Neetu, son of Raj Singh, resident
of Village Bannikheda, Muzaffarnagar, Uttar Pradesh. I managed
to free my hand, ran toward my room, and locked it from the
inside. Following this, the man came to my door, started banging
on it, and began shouting filthy abuses. Upon hearing the noise,
other people arrived at the scene and caught Neetu, son of Raj
Singh (the accused) , and called the PCR. Legal action be taken
against Neetu, son of Raj Singh …”
15. PW2, in her 164 statement, deposed that on 20.03.2013,
she was studying in her room. At about 09:30 PM, she went to use
the bathroom. When returning to her room, a man started
following her. He grabbed her hand and molested her. ( उसने मेरे
हाथ पकड़ा व् मेरे साथ छेड़खानी की ). Out of fear, she ran into her
room and bolted the door from inside. The man remained outside
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and continued to use obscene words. He knocked on the door, but
she did not open the latch. She raised an alarm and called her
parents. Thereafter, persons gathered at the spot, and her brother
called the police. The police arrived and took that man away.
16. PW2 when examined before the trial court, broadly
supported the version given by her in Ext. PW2/A FIS/FIR and her
statement under Section 164 Cr.P.C. PW2 deposed that her date of
birth is 10.05.1995. She along with her family comprising her
parents, brother, and younger sister were residing in a rented room
on the fourth floor of the building. There were six rooms in a row
on the fourth floor, where the other tenants were residing. Two
common bathrooms on the same floor were used by all the tenants.
At the time of the incident, her younger sister was also in the
room, but her father had not yet returned from work. During that
time, her mother had gone to their village, and her brother had
gone to work. When the accused caught hold of her hand, he was
using abusive and vulgar language. After she bolted the door of her
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room from inside, the accused started banging on the door and
continued to use abusive language. She immediately called her
father. In the meantime, other persons gathered at the spot and
apprehended the accused. Her father reached the spot shortly
thereafter. The matter was then reported to the police. The police
arrived at the spot and recorded her Ext. PW2/A statement. The
police later arrested the accused vide Ext. PW2/B arrest memo and
conducted his personal search vide Ext. PW2/C memo. Ext.
PW2/D site plan of the scene of the incident was also prepared. On
05.06.2013, she was taken to the trial court, where the Magistrate
concerned recorded Ext. PW2/F, her statement under Section 164
Cr.P.C. She had seen the accused earlier as he used to visit one of
his friends residing in the same building. On the day of the
incident, the accused was under the influence of alcohol.
16.1 PW2 in her cross-examination, deposed that her brother
was working in a private company. She had never seen her brother
in the company of the accused. Her brother used to return home by
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09:00 PM, but on that date of the incident, he returned late. She
denied the suggestion that her brother had a quarrel with the
accused. She was unaware of the place of residence of the accused.
She denied the suggestion that no such incident had taken place or
that the accused had any quarrel with her brother. She further
denied the suggestion that she was deposing falsely.
17. As per Section 386(1) Cr.P.C, the Appellate Court may
in an appeal from an order of acquittal, reverse such order and
direct that further inquiry be made, or that the accused may be re-
tried or committed for trial, as the case may be, or find the accused
guilty and pass sentence on him according to law. The general
principles regarding the powers of the appellate court while
dealing with an appeal against acquittal are:- firstly, the appellate
court has the power to review, reappreciate and reconsider the
evidence upon which the order of acquittal is founded. Secondly,
the Code puts no limitation, restriction or condition on exercise of
such power and an appellate court on the evidence before it, may
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reach its own conclusion, both on questions of fact and of law.
Thirdly, various expressions, such as, “substantial and compelling
reasons”, “good and sufficient grounds”, “very strong
circumstances”, “distorted conclusions”, “glaring mistakes”, etc.
are not intended to curtail the extensive powers of an appellate
court in an appeal against acquittal. Such phraseologies are more
in the nature of “flourishes of language” to emphasise the
reluctance of an appellate court to interfere with an acquittal than
to curtail the power of the court to review the evidence and to
come to its own conclusion. Fourthly, an appellate court, however,
must bear in mind that in the case of acquittal, there is a double
presumption in favour of the accused, that is, (i) the presumption
of innocence is available to him under the fundamental principle of
criminal jurisprudence that every person shall be presumed to be
innocent unless he is proved guilty by a competent court of law,
(ii) the accused having secured his acquittal, the presumption of
his innocence is further reinforced, reaffirmed and strengthened by
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the trial court. Lastly, if two reasonable conclusions are possible
on the basis of the evidence on record, the appellate court should
not disturb the finding of acquittal recorded by the trial court. (See
Babu Sahebogouda Rudragoudar and others v. State of
Karnataka (2024) 8 SCC 149, Rajesh Prasad v. State of Bihar
(2022) 3 SCC 471, Chandrappa vs. State of Karnataka, (2007)
4 SCC 415 ). In Ram Kumar v. State of Haryana, 1995 Supp (1)
SCC 248 , the Apex Court observed that the powers of the High
Court in an appeal from order of acquittal to reassess the evidence
and reach its own conclusions under Sections 378 and 379 CrPC
are as extensive as in any appeal against the order of conviction.
But as a rule of prudence, it is desirable that the High Court should
give proper weight and consideration to the view of the trial court
with regard to the credibility of the witness, the presumption of
innocence in favour of the accused, the right of accused to the
benefit of any doubt and the slowness of appellate court in
justifying a finding of fact arrived at by a judge who had the
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advantage of seeing the witness. No doubt it is settled law that if
the main grounds on which the court below has based its order
acquitting the accused, are reasonable and plausible, and the same
cannot entirely and effectively be dislodged or demolished, the
High Court should not disturb the order of acquittal.
18. This Court shall, therefore, examine the evidence and
the materials on record to see whether the conclusion recorded by
the trial court in acquitting the appellant is reasonable and
plausible or whether the same is vitiated by manifest illegality or
the conclusions recorded by the trial court are such which could
not have been possibly arrived at by any court acting reasonably
and judiciously which may in other words be characterised as
perverse.
19. Though the appellant/accused has been chargesheeted
for having committed offences punishable under Sections 354,
354A(i), (v), 354D, 509 IPC and Section 10 of the PoCSO Act,
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the trial court framed Charge only for the offences punishable
under Sections 354A, 354D, IPC and 12 of the PoCSO Act.
Therefore, I will consider whether the materials on record establish
the said offences. Section 354A IPC defines the offence of sexual
harassment. The essential ingredients are: (i) the victim must be a
woman; (ii) there must be unwelcome and explicit sexual conduct;
and (iii) such conduct may include physical contact and advances
involving sexual intent, a demand or request for sexual favours,
showing pornography against her will, or making sexually
coloured remarks. The prerequisite of the offence is in the
unwelcome nature of the act coupled with sexual intent. Section
354D IPC, on the other hand, contemplates the offence of stalking.
The essential ingredients are: (i) the accused must follow or
contact a woman repeatedly; (ii) such contact must be despite a
clear indication of disinterest by the woman; or (iii) the accused
monitors her use of the internet or electronic communication.
Section 12 of the PoCSO Act provides punishment for sexual
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harassment of a child. The essential ingredients are: (i) the victim
must be a child below 18 years of age; (ii) the accused must
engage in sexual harassment without physical contact; and (iii)
such conduct may include making sexual remarks, gestures,
showing pornography, or repeatedly communicating with sexual
intent.
20. The materials on record or the alleged overt acts of the
accused apparently do not fall under Sections 354A IPC, 354D
IPC or Section 12 of the PoCSO Act.
21. If criminal force or assault on a woman or attempt to
outrage the modesty is proved, the act can fall under Section 354
IPC. Section 354 IPC requires the use of criminal force or assault
against a woman, and such an act being done with the intent to
outrage, or knowing it to be likely that it would outrage, her
modesty. Section 350 IPC defines criminal force as when any
person intentionally uses force to any person without that person’s
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consent, in order to commit an offence or intending by the use of
such force to cause or knowing it to be likely that by the use of
such force, he will cause injury, fear or annoyance to the person to
whom the force used. Section 349 IPC defines force as any person
causing motion, change of motion, or cessation of motion to other
or causing any substance such motion, or change of motion, or
cessation of motion as bringing that substance into contact with
any part of that other's body, or with anything which that other is
wearing or carrying, or with anything so situated that such contact
affects that other's sense of feeling: provided the person causing
the motion, or change of motion, or cessation of motion, causes
that motion, change of motion, or cessation of motion in one of the
following three ways: (i) by his own bodily power (ii) by disposing
any substance in such a manner that the motion or change or
cessation of motion takes place without any further act on his part,
or on the part of any other person. (iii) by inducing any animal to
move, to change its motion, or to cease to move. Assault has been
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defined under Section 351 IPC to mean any gesture or any
preparation intending or knowing it to be likely that such gesture
or preparation will cause any person to apprehend that he who
makes that gesture or preparation is about to use criminal force on
that person.
22. In the case on hand, the conduct of the accused a
stranger, in approaching PW2 at night while she was going to use
the common washroom on their floor and further, catching hold of
her hand without her consent certainly amounts to use of criminal
force. PW2 became frightened, ran inside her room and bolted the
door. Such conduct of the accused, by its very nature, is sexually
coloured, and with the intention of the accused was to outrage the
modesty of PW2. The absence of any relationship between the
accused and PW2, and the sudden act by the accused as a stranger,
demonstrates his intent. Accordingly, even if the offence under
Section 354A IPC is not made out, the proved facts clearly
constitute an offence under Section 354 IPC. But, no Charge under
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Section 354 IPC has been framed against the appellant/accused.
23. Here it would be appropriate to refer to Section 222
Cr.P.C. Section 222(1) Cr.P.C deals with a case, “when a person is
charged with an offence consisting of several particulars”. The
Section permits the Court to convict the accused “of the minor
offence, though he was not charged with it”. Sub-section (2) deals
with a similar, but slightly different situation. Under Section
222(2) Cr.P.C., when a person is charged with an offence, and
facts are proved, it is reduced to a minor offence; he may be
convicted of a minor offence, although he is not charged with it.
The meaning of a “minor offence” for the purpose of Section 222
Cr.P.C. was dealt with by the Apex Court in S.M. Multtani v.
State of Karnataka, 2001 (2) SCC 577 , in which it has been held
that, although the said expression is not defined in Cr.P.C, it can be
discerned from the context that the test of minor offence is not
merely that the prescribed punishment is less than the major
offence. The two illustrations provided in the Section would bring
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the above point home well. Only if the two offences are cognate
offences, wherein the main ingredients are common, the one
punishable among them with a lesser sentence can be regarded as a
minor offence, vis- a-vis the other offence.
24. I have already referred in detail to the essential
ingredients of Section 354 IPC and Section 354A IPC. It is
apparent that the ingredients contemplated under Section 354 and
Section 354A IPC are different. The punishment contemplated
under Sub section (2) and (3) of Section 354A is lesser than the
sentence contemplated under Section 354 IPC. Therefore Section
354 IPC cannot be termed as a minor offence as contemplated
under Section 222(1) or (2) Cr.P.C. when compared to Section 354
IPC. In these circumstances, neither sub-section (1) or (2) of
Section 222 Cr.P.C. can be invoked in this case. Hence, I find no
ground for interference.
25. In the result, the appeal sans merit is dismissed.
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26. Application(s), if any, pending, shall stand closed.
CHANDRASEKHARAN SUDHA
(JUDGE)
APRIL 28, 2026
p’ma
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