Delhi Court convicts three men of outraging modesty of woman bouncer at club

A Delhi Court recently convicted three men accused of outraging the modesty of a woman bouncer during a brawl at a nightclub in 2016 [State v. Gautam Gambhir & Ors]..While doing so, the Court opined that mere defective or lackadaisical investigation by the investigating officer cannot be a sole ground to throw away the entire prosecution case..Principal District and Sessions Judge Dharmesh Sharma, though critical of the initial probe by the police, highlighted that the prime objective of the criminal justice delivery system was to “accord justice to all the stakeholders - the accused, the complainant/victim, the society as well as the prosecution.”.The Court stated that the only "fault line" in the probe was that the investigating officer (IO) did not record the statement of the owner of the club, and that he did not seize the CCTV footage of the place of incident.“The version of the IO is that CCTV cameras were not in working condition does not inspire confidence since no notings or statement to that effect was recorded by him nor there is any thing in the case diary to suggest that he made enquiries with regard to working of the CCTV cameras so as to retrieve or seize its footage,” the Court noted..Three men - Gautam Gambhir, Mohit and Nitin Nayyar - faced trial for reportedly attacking the woman and others at Hammer Club in West Gate Mall, Rajouri Garden on July 15, 2016. The brawl was stated to have started between two groups from two different clubs in the city.They faced trial for charges under Sections 452 (house-trespass after preparation for hurt, assault or wrongful restraint), 308 (attempt to commit culpable homicide), 354 (assault or criminal force to woman with intent to outrage her modesty) and Section 34 (common intention) of the Indian Penal Code..The judgment termed the woman’s testimony to be of “sterling quality” even though at one point she was stated to have given a “new twist” to her statement during her deposition.On her position, the Court explained, “It is highly probable that the shock and horror of the brazen manner in which she was molested and assaulted by the accused persons was heavily bearing on the mind of PW-1 (woman) but ultimately truth prevailed and her testimony is of sterling quality.”The defence’s contention that the woman and other witnesses had revealed the names of the accused persons at the behest of her employer was, resultantly, rejected by the Court. “Merely because, PW-1 did not initially support the prosecution case with regard to the identity of the accused persons as the real offenders would not wash away her entire testimony from the record in terms of Section 145 of the Indian Evidence Act,” the Court argued.In the view of the Court, the prosecution could rely upon a part of the testimony of the witness that “conforms to foundational facts of their case against the accused persons” and in this case, the other witness had corroborated the allegations in the complaint levelled by his colleague - the woman bouncer..In order to reinforce its opinion, the Court reiterated a "settled position in law" that the testimony of a hostile witness couldn’t be ipso facto discarded in toto.“It is well settled that portion of the testimony of a hostile witness, that inspires confidence can be used. It is also well settled that testimony of a hostile witness finding corroboration from other material can be believed either in favour of the prosecution or the defence as the case may be…” it said..The defence counsel, on the contrary, contended that none of the public witnesses had identified the accused persons as the real offenders, as the IO had deliberately withheld the CCTV footage of the incident..After sifting through the prosecution evidence, the Court found that the woman was assaulted as shown form the nature of injuries she had suffered and as reflected in her medico-legal report.As regards the charges under Sections 323 and 354 IPC, the Court said,"As the nature of injuries inflicted upon the victims/injured persons was by all means ‘simple’ in nature, the offence under Section 323 IPC was also committed by the accused persons in furtherance of their common intention and in the process or same transaction PW-1 was also molested as not only accused Gautam Gambhir and Nitin Nayyar @ Sunny fiddled with her breast and attempted to kiss her but also hit her on her private part. It was a clear case of outraging modesty of a woman punishable under Section 354 IPC."The Court subsequently directed the legal services authority to file "victim impact report" while order the convicts to show their income through affidavits. The matter would be heard again on November 27, 2021, and until then the convicts would remain on bail.Additional Public Prosecutor Atul Kumar Shrivastava represented the State..[Read Judgment]