Delhi District Court
Judgment In Case Fir No.63/2013 Titled ... vs . Salim Page 1 Of 14 on 2 February, 2015
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IN THE COURT OF MS. HEMANI MALHOTRA, ADDITIONAL
SESSIONS JUDGE-05 (CENTRAL), TIS HAZARI COURTS, DELHI
Sessions Case No.96/2014
FIR No: 63/2013
PS: Kashmere Gate
U/s 354/354A/328 IPC
Unique ID No. 0240IR0039692014
State
Versus
Mohd. Salim S/o Mohd. Usman
R/o Shop No.617, Hamilton Road,
Kashmere Gate, Delhi
Date of institution : 23.05.2014
Date of conclusion of argument / reservation
for judgment : 22.01.2015
Date of pronouncement of judgment : 02.02.2015
JUDGMENT
1. Accused Mohd. Salim S/o Mohd.Usman was committed to the Court of Sessions to stand trial under Sections 354/354A/328 IPC for outraging the modesty of complainant Sunita Rajput after administering stupefying drug in a cold drink to her at about 3.30 PM on 23.03.2013 at Shop No.617, Hamilton Road, Kashmere Gate, Delhi.
FACTS OF THE CASE:
2. The facts of the prosecution case as gathered from the charge sheet and first information statement of the complainant are that on 23.03.2013, SI Ramesh Prasad Singh on receipt of DD No.26A along with Const. Gajender reached at the spot i.e Shop No.617, Judgment in case FIR NO.63/2013 titled State Vs. Salim Page 1 of 14 2 Hamilton Road, Kashmere Gate where WSI Veena Kumari was already found present. Complainant Sunita Rajput narrated the incident to WSI Veena Kumari. WSI Veena Kumari left Const. Gajender and accused at the spot and took the complainant Sunita Rajput to Aruna Asaf Ali Hospital where she was medically examined vide MLC No.619/13. The doctor who had examined the complainant declared the complainant fit for statement. W/SI Veena Kumari then recorded the first information statement of the complainant wherein she stated that she has been residing as tenant in House No.1679/2,Govind Puri Extension, Kalkaji, Delhi for one and half year and is a house wife. She has two children namely Ankur aged about 22 years and a daughter Swati aged about 24 years. She has been frequently visiting the tantrik (accused Mohd. Salim) for the treatment of her ailment since last one and half/two years at 617,Hamilton Road, Delhi. The tantrik /accused Mohd.Salim told her that she has cysts in her brain which can be treated by him. For her treatment, the accused used to give her small paper slips soaked in milk and water. When she felt temporary relief with the treatment provided to her, she informed the tantrik/accused Mohd.Salim about 7-8 months prior to the incident that she has recovered and does not require further treatment. At this, tantrik/accused Mohd.Salim told her that her treatment is not complete and he is yet to treat her for 2-3 other ailments. Tantrik/accused Mohd. Salim accordingly gave her small earthen lamps (diya bati) and told her to keep the same under her head while sleeping at night. She followed the instructions of the Tantrik/accused Mohd. Salim but her condition became worse. Resultantly, she visited accused Mohd. Salim at about 3.30 PM on 23.03.2014 who offered her a bottle of Maaza (cold drink). After drinking Maaza, she fell unconscious. When she regained her consciousness, she found Tantrik/accused Mohd.
Judgment in case FIR NO.63/2013 titled State Vs. Salim Page 2 of 14 3Salim touching her shoulder inappropriately. She objected to the conduct of the accused and immediately dialed 100 number. On an earlier occasion, the tantrik/accused Mohd.Salim had asked her to accompany him to Mussoorie but she had refused. He had told her that he will treat her completely only if she has physical relationship with him.
3. It is further the case of the prosecution that after recording the first information statement of the complainant Sunita Rajput, W/SI Veena Kumar got registered the case FIR u/ss 354/354A/328 IPC through Const. Gajender. During investigation, W/SI Veena Kumari prepared the site plan at the instance of SI Ramesh Prasad Singh, arrested the accused Mohd. Salim, conducted his personal search and seized the empty Maaza (cold drink) bottle. after converting the same into pulanda. After completing the investigation, she filed the chargesheet u/ss 354/354A/328 IPC.
CHARGE
4. Charges under Sections 354/354A/328 IPC were framed against the accused Mohd.Salim S/o Mohd.Usman to which he pleaded not guilty and claimed trial.
EVIDENCE
5. To establish its case, prosecution has examined as many as 10 witnesses. Material witness, Sunita Rajput (victim/complainant) was examined as PW 1. Formal Witnesses, W/Const. Nirmala, HC Harpal Singh (Duty Officer), Const. Sita Ram, HC Kalu Ram were examined as PW2, PW 3, PW4 and PW 6 respectively. Medico Witnesses ; Dr. Surendra Kumar and Ms. Archna Rawal, Statistical Judgment in case FIR NO.63/2013 titled State Vs. Salim Page 3 of 14 4 Assistant were examined as PW 4 and PW 7. Witnesses of investigation, Const.Gajender, SI R.P.Singh and SI Veena Kumari were examined as PW 8, PW 9 and PW 10.
MATERIAL WITNESSES
6. Complainant Sunita Rajput/PW1 testified that she is residing at a rental accommodation with her children and that she is a housewife. Since she had been suffering from cysts in her brain, she visited accused Mohd.Salim at his shop at 617, Hamilton Road, Kashemre Gate, Delhi for treatment. The accused assured her of treating her ailment and gave her some written slips and further instructed her to soak these slips in a glass of milk till the writing on the slips gets absorbed and thereafter to consume the milk. Accused also gave some slips with instructions to burn them. After following the aforesaid instructions, she felt temporarily relieved and also paid for the said treatment. One day she told the accused that she feels cured and would not like to visit him again. At this, the accused informed her that the treatment is not yet complete and gave her one diya and some nails and instructed her to keep the diya under her head in the night and to pierce the nails on her body while chanting "Ram Ram". Then, per the instructions of the accused, she burried the nails and diya in the ground the next day.
7. PW 1 further testified that however, after three days, she felt as if she was on fire and became more unwell. She then again visited the shop of the accused and told him that she has become more ill fallen more sick after following his instructions and she felt as if some spirit had entered her body. She requested him to remove that spirit from her body telling him that he was responsible for Judgment in case FIR NO.63/2013 titled State Vs. Salim Page 4 of 14 5 her not recovering. The accused refused to remove the spirit from her body and told her "meri Eid aa rahi hai. Thereafter, she came back to her house.
8. PW 1 also testified that at about 3.30 PM on 23.03.2013, she again visited the shop of the tantrik/accused for her treatment and told him that her health had deteriorated. Accused asked her to sit in his shop and gave her a bottle of Maaza to drink. Immediately, after drinking the cold drink, she fell unconscious and when she regained her consciousness, she felt the accused Mohd. Salim touching her breasts. She objected to the conduct of the accused and came out of the shop whereafter she dialed 100 number. She also deposed that prior to this incident of 23.03.2013, accused had asked her to accompany him to Mussoorie but she had refused. Accused had also told her that he would cured her completely only if she agreed to sleep with him. After some time, police came to the spot , made enquiries from her and recorded her first information statement Ex. PW1/A. On the basis of her statement, case FIR was got registered and on her pointing out, site plan was prepared. Accused was then apprehended and she was taken to hospital by the police for her medical examination where her blood sample was taken which was seized vide seizure memo Ex. PW1/B.
9. In her cross examination, PW1 testified that she had been suffering from cysts in her brain since last 5-6 years and she had visited many doctors. She had also prayed at Mehandipur Balaji for treatment but in vain. One day, she met one lady Zareena at Sunheri Masjid near Lal Quila who told her about the tantrik/accused Mohd.Salim. She visited the accused for almost a year for her treatment. She used to visit him 2-3 times in a month.
Judgment in case FIR NO.63/2013 titled State Vs. Salim Page 5 of 14 6Initially she felt some relief and she told the accused about 7-8 months before the incident that she would not visit him further. But, 5-6 months prior to the incident, she felt discomfort in her body so she visited the accused and complained to him. She felt as if some spirit was controlling her body and having sex with her. She also used to feel as if her body was on fire. She visited the accused many times thereafter. On her last visit to the tantrik /accused on 23.03.2013, the accused took out a cold drink from his refrigerator and had offered the same to her. After consuming the cold drink, she became unconscious for almost ten minutes. When she realized that the accused was touching her inappropriately, she objected to his behaviour, come out ofs the shop and dialed 100 number. The accused on an earlier occasion after he had put a spirit in her body had asked her to accompany him to Mussoorie and establish physical relationship with him. Despite this, she kept visiting him so that he would remove the spirit from her body.
10. In her further cross examination, PW1 denied the suggestion that she had also visited the accused on 22.03.2013 i.e one day before the incident and had asked him to return her money and to pay her compensation. She further negated the suggestion that she had threatened him that she will falsely implicate him in case he does not return money and pay compensation to her. She also refuted the suggestion that she had visited the accused not for any alleged treatment but for "nazar utarna". She vehemently denied the suggestion that she used to drink alcohol and she was falsely implicating the accused to extract money from him.
11. After the statement of accused was recorded u/s 313 Cr.P.C learned counsel for the accused moved an application u/S 311 Judgment in case FIR NO.63/2013 titled State Vs. Salim Page 6 of 14 7 Cr.P.C for recalling PW-1 Sunita Rajput in order to confront her with FIR No. 59/12 U/ss 376/511/506 IPC PS Govind Puri which was allowed. During her further cross examination by the learned counsel for the accused, PW-1/Victim/Sunita Rajput admitted that she had lodged the FIR No.59/12 (Ex.PW1/DA) u/ss 376/511/506 IPC at PS Govind Puri against one Nand Lal Chaturvedi S/o Sh. Chander Shekhar Chaturvedi and that at the time of lodging of the said FIR, she was residing at 1680, C/3, Govind Puri, Kalkaji, New Delhi 19. She also admitted that she had not disclosed the fact of lodging of the FIR No.59/12 to the IO of the present case. Although her children were also aware of lodging of the FIR No.59/12 neither her son was called to record his statement nor made a witness in that case.
FORMAL WITNESSES
12. PW2 W/Const. Nirmala testified that on 23.03.2013, she was posted as Constable in PCR Police Headquarters, Delhi. At about 3.42 PM, she received an information that "shop no.617, Kashmere Gate, Kudedan ke pass ek admi ne mujhe campa cola pilai jisse main behosh ho gayee aur fir mere se badtamiji ki hai" from one Sunita from mobile number 9811843754 which was sent to Console Operator who entered the said information in the computer. She proved the attested copy of the PCR form-I duly attested by ACP/Control Room as Ex.PW2/A.
13. PW 3 HC Harpal Singh testified that he was the duty officer at PS Kashmere Gate on 23.03.2013 and he registered the FIR No.63/13 (Ex.PW3/A) on the basis of rukka brought by Const. Gajender (PW8) sent by W/SI Veena Kumari (PW 10). He also proved his endorsement (Ex.PW3/B) on the rukka.
Judgment in case FIR NO.63/2013 titled State Vs. Salim Page 7 of 14 814. PW 6 HC Kalu Ram deposed that on 30.02.2013, SI Veena Kumari (IO/PW10) deposited with him two sealed pulandas; one sealed with the seal of VK and other sealed with the seal of CMO AAA GH along with one sample seal. He made the relevant entry in register No.19 at serial no.3235 (Ex.PW6/A) in this regard.
15. PW 6 further testified that on 01.04.2013, both the sealed pulandas along with sample seal were sent to FSL Rohini through Const. Sita Ram (PW4) vide RC NO.39/21/13. After depositing the pulandas, Const. Sita Ram (PW4) deposited the acknowledgment receipt. He proved the the copy of the road certificate as Ex. PW6/B.
16. PW4 Const. Sita Ram testified that on 01.04.2013, as per the directions of the IO, he took two sealed pulandas; one sealed with the seal of AAA, CMO containing blood sample of the victim and the other sealed with the seal of VK containing empty cold drink (Maaza) bottle along with one sample seal and forwarding letter for depositing the aforesaid in FSL, Rohini from MHC (M) vide RC No. 39/21/13. After depositing the aforesaid samples, he handed over the acknowledgment to the MHC(M).
17. SI R.P.Singh was examined as PW9 who testified that on 23.03.2013 on receipt of DD No.26A regarding misbehaviour with the complainant and administering stupefying substance in a bottle of maaza drink to her, he along with Const. Gajender (PW8) reached at the spot i.e Shop No. 617, Hamilton Road, Delhi where accused Mohd.Salim and complainant met them. He narrated the incident to the SHO, Kashmere Gate whereafter, W/SI Veena Kumari reached the spot and he returned to the PS. Judgment in case FIR NO.63/2013 titled State Vs. Salim Page 8 of 14 9 MEDICO WITNESSES
18. PW 5 Dr. Surendra Kumar, Chief Medical Officer, Aruna Asaf Ali Hospital testified that on 23.03.2013, victim Sunia Rajput W/o Ashok Rajput was brought by SI Veena Kumari (PW10) for her medical examination with the alleged history of molestation after having some unknown substance mixed in her cold drink at about 3.30 PM on 23.03.2013. On examination, victim was found to be conscious/oriented. On local examination, no visible fresh external injuries were seen. Blood sample of the vicim was taken which was sealed with the seal AAA of the hospital and handed over to the IO/PW10 along with sample seal. He proved the MLC of victim Sunita Rajput as Ex. PW5/A. He further testified that victim was thereafter referred to SR (Medicine) and SR (Obs and Gynae) for detailed examination and further management.
19. PW7 Archna Rawal, Statistical Assistant, Aruna Asaf Ali Hospital proved copy of the medical treatment record of victim Sunita Rajput/PW1 as Ex. PW7/A (OSR).
WITNESSES OF INVESTIGATION
20. PW 10 SI Veena Kumari testified that on 23.03.2013, on receipt of information regarding harassment to a woman, she reached the spot i.e. Hamilton Road, Kashmere Gate where SI Ramesh Prasad Singh (PW9) was already present. Complainant Sunita Rajput (PW1) was also present who was not feeling well. Accused was also present at the spot. Sunita Rajput/PW1 was taken to Aruna Asaf Ali Hospital by her medical treatment. Lateron PW1 lodged her complaint. She obtained the MLC of complainant/PW1 and blood sample duly sealed and seized the same vide seizure memo Judgment in case FIR NO.63/2013 titled State Vs. Salim Page 9 of 14 10 Ex. PW1/B. She then prepared rukka Ex. PW10/A and got the present case FIR (Ex.PW3/A) registered. Thereafter, she returned to the spot. On enquiry from the accused, he handed over one empty bottle of cold drink Maaza (250 ml) which she took into possession vide seizure memo Ex. PW8/A after preparing a pulanda and sealing it with the seal of VK. She also prepared site plan (Ex.PW8/B) and arrested the accused vide arrest memo (Ex.PW8/B). Personal search of accused was conducted vide search memo (Ex.PW8/C). She also sent blood sample of the complainant/PW1 and maaza bottle sent to FSL. PW 10 also proved the FSL result as Ex.PW10/C.
21. PW-8 Const. Gajender corroborated the testimony of PW 10/IO W/SI Veena Kumari regarding the investigation conducted by them. He testified that on 23.03.2013 on receipt of DD No. 26 A, he along with SI Ramesh/PW9 reached shop no.617,Hamilton Road, Kashmere Gate where complainant/PW1 Sunita Rajput and accused Mohd. Salim were found to be present. After registration of the case FIR, he returned to the and handed over the copy of FIR and rukka to SI Veena (PW10).
22. PW 8 Constable Gajender further testified that the empty soft drink Maaza bottle (Ex.P1) having over by the accused was taken into possession vide seizure memo Ex.PW8/A after sealing the same with the seal of VK. Seal after use was handed over to him. Accused Mohd. Salim was thereafter arrested vide arrest memo Ex. PW8/B and his personal search was conducted vide search memo Ex. PW8/C. Thereafter, they returned to the Police Station and deposited the case property with MHC(M). PW8 correctly identified the empty Maaza bottle (Ex. P1) to be the one which was seized from the shop of accused Mohd. Salim.
Judgment in case FIR NO.63/2013 titled State Vs. Salim Page 10 of 14 11VERSION OF ACCUSED
23. After conclusion of prosecution evidence, statement of accused Mohd. Salim was recorded u/s 313 wherein he denied the prosecution case in toto and stated that he has been falsely implicated by the complainant. Although, accused did not opt to lead any evidence in defence, he recalled PW-1/ Sunita Rajput for further cross examination to confront her with FIR No.59/12 registered at PS Govindpuri at her instance against one Nand Lal u/ss 376/506/511 IPC.
APPRECIATION OF EVIDENCE
24. The most material witness on whom the entire case of the prosecution rests is the victim (PW1) Sunita Rajput herself. The careful scrutiny of the evidence of PW1 Sunita Rajput reveals that she came to know of the accused Mohd.Salim through one Zarina and she started visiting the accused Mohd. Salim allegedly a tantrik thereafter. In her testimony, although she gave the history of her time to time visits to tantrik accused Mohd.Salim, she did not give any specific dates of the same. According to her, the accused practiced tantrik vidya on her to relieve her of her ailment but instead of her improving, her condition became worse. During her treatment, he even asked to accompany him to Mussoorie and to establish physical relations with him which she had refused. On her subsequent visit, accused Mohd.Salim made explicit sexual overtures by telling her that his "Id was approaching".
25. It is rather baffling that despite the allegations of the victim Sunita Rajput that accused had been making sexual advances and overtures towards her, she kept on regularly visiting him for her Judgment in case FIR NO.63/2013 titled State Vs. Salim Page 11 of 14 12 further treatment. To my mind, any prudent person would immediately stop visiting the said offender and make a complaint against him for the sexual harassment, rather than visiting him for any purpose.
26. It is the case of the prosecution that the accused Mohd.Salim was a tantrik and that victim Sunita Rajput had been visiting the accused for her treatment. The prosecution failed to produce any witness to prove the fact that accused Mohd.Salim was a tantrik. Even the statements of the children of the victim Sunita Rajput was not recorded by the Investigating Agency to prove the fact that the victim Sunita Rajput had been visiting accused Mohd.Salim who was a tantrik for her treatment.
27. The learned counsel for the accused also brought to the notice of the court FIR No.59/12 (Ex.PW1/DA) U/ss 376/511/506 IPC PS Govind Puri against one Nand Lal Chaturvedi when PW-1Sunita Rajput was recalled for cross examination which reveals that she got registered a complaint against one Nand Lal Chaturvedi on 28.01.2012 alleging that she was suffering from pain in her left hand and on advise of some well wishers, she went to Nand Lal Chaturvedi who claimed himself to be a Pandit. Nand Lal Chaturvedi had told her that she had been affected by some bad spirits and to relieve her of pain, she would have to get some prayers conducted. She had paid about Rs.11,000/- to the said Pandit/Nand Lal Chaturvedi on the pretext of the treatment, who had eventually cheated her off the amount of Rs.11,000/-,two gold karas and one mobile phone. Under the garb of treatment, he also attempted to rape her and had threatened her with dire consequences.
Judgment in case FIR NO.63/2013 titled State Vs. Salim Page 12 of 14 1328. From the contents of the FIR (Ex.PW 1/DA), it is evident that PW1 Sunita Rajput had made a similar complaint against one Nand Lal Chaturvedi alleging attempt to rape and after registration of the FIR Ex.PW 1/DA, she made similar allegations against the accused Mohd.Salim. During her cross examination, she stated that she had been suffering from cysts in her brain for the last 5-6 years and for her treatment, she had visited various forums i.e Doctors and places like Mehandipur Balaji, but she did not disclose that just prior to her visits to the accused, she had also visited one Nand Lal Chaturvedi who had allegedly cheated her and had attempted to rape her. She also did not disclose that she had got registered an FIR No.59/12 (Ex.PW1/DA), PS Govindpuri, under Sections 376/506/511 IPC .
29. She also substantially improved her statement in her testimony. In her first information statement Ex.PW1/A, she had stated that when she was in the process of regaining her conscious after having been administered some stupefying substance in Maaza , she felt the accused touching her shoulder inappropriately, whereas in her testimony, she stated that she had felt the accused touching her breasts.
30. Her testimony regarding accused Mohd. Salim touching her inappropriately, for the reasons stated above does not inspire confidence. Hence, in my opinion, it will not be safe to convict accused Mohd. Salim of the offence of outraging the modesty of the victim Sunita Rajput and sexually harassing her on the basis of such uncorroborated sole version of the prosecutrix.
31. The medical record (Ex.PW7/A) proved by Ms.Archna Rawal, Statistical Assistant, Aruna Asaf Ali Hospital also casts a doubt on Judgment in case FIR NO.63/2013 titled State Vs. Salim Page 13 of 14 14 the conduct of the victim Sunita Rajput/PW1. It indicates that she was admitted in Aruna Asaf Ali Hospital on 23.03.2013 and on 25.03.2013, she absconded from the ward at about 9.00 PM i.e she left the hospital without any information to the authorities. The blood sample of victim Sunita Rajput was sent to FSL, Rohini for examination as Ex.P1 sealed in the parcel 1 with seal of CMO AAA Government Hospital. As per the result of the FSL Ex.PW10/C after examination, Ex.P1 was found to contain Ethyl Alcohol 27.10 mg/100 ml of blood which indicates that on the day of the incident, victim Sunita Rajput had consumed alcohol. The contents of the cold drink Maaza alleged to have been given to her by the accused Mohd.Salim before she lost consciousness on the day of the incident were sent to the FSL to examine if any stupefying substance had been administered to the victim Sunita Rajput. As per the FSL report (Ex.PW10/C), no Methyl Alcohol, Ethyl Alcohol , Alkaloids, Barbiturates and Tranquilizers could be detected in the contents of the Maaza (Ex.P1). Since, there is no positive evidence regarding the accused administering stupefying substance to the victim Sunita Rajput, no offence u/s 328 IPC is made out against the accused Mohd. Salim.
32. In the light of the aforesaid discussion, I am of considered view that the prosecution has failed to establish its case against the accused Mohd. Salim beyond reasonable doubt. Accordingly, accused Mohd.Salim is acquitted of the charges u/ss 354/354A/328 IPC giving him benefit of doubt.
File be consigned to Record Room.
Signed and Announced in the open (Hemani Malhotra)
Court on: 2.2.2015 Addl. Sessions Judge-05
(Central) Tis Hazari Courts
Delhi
Judgment in case FIR NO.63/2013 titled State Vs. Salim Page 14 of 14