Delhi District Court
Vs. Puttraj 2004 (1) Scc 475" And "Om ... vs . State Of U.P. 2006, on 7 September, 2018
IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE SPECIAL FTC - 2 (CENTRAL)
TIS HAZARI COURTS: DELHI.
Case No. 576/2017
Assigned to Sessions. 03.08.2017
Arguments heard on 07.09.2018
Date of Judgment 07.09.2018
FIR No. 622/2016
State V Radhey Shyam Mishra s/o Lt. Sh.
Kariya Mishra, R/o. H. No.30/13,
Gali No.30, A1 Blk, Bengali Colony,
Sant Nagar, Burari, Delhi.
Police Station Burari
Under Section 376 (2)(f) IPC
JUDGMENT :
1. In the present case Station House Officer of Police Station Burari had filed a
challan vide FIR No.622/2016 dated 21.12.2016 u/s. 376 IPC for the
prosecution of accused Radhey Shyam Mishra in the court of ld. Metropolitan
Magistrate. After compliance of the requirement of section 207 Cr. P.C. the
case was sent to this court being the designated Special Fast Track Court for
trial of the offences of sexual assault against the women through the Office of
Ld. District & Sessions Judge (HQ), Tis Hazari Courts, Delhi. Keeping in view
of section 228 (A) IPC and directions of Supreme court in "State of Karnataka
Vs. Puttraj 2004 (1) SCC 475" and "Om Prakash Vs. State of U.P. 2006,
CRLJ. 2913", the name of prosecutrix is not being disclosed in the judgment.
Case No.576/2017
State Vs. Radhey Shyam Mishra 1/20
BRIEF FACTS OF THE CASE:
2. In this case criminal law was set into motion on the basis of complaint dated 21.12.2016 of prosecutrix Ex.PW1/A and FIR No. 622/2016 u/s 376 IPC was registered. In her complaint prosecutrix had narrated that she has three sons and his husband used to work as plumber. She stated that on 20.12.2016 at about 1:00 p.m. she went to get medicine from Homeopathic doctor Mishra at his clinic. Then there no one was present in the clinic and doctor Mishra was alone at the clinic. Accused taken her to clinic behind the curtain and laid down her there and locked the clinic from inside. Thereafter, accused committed rape with her without her consent. She further stated that when her husband came at home she narrated him the incident.
3. During the investigation, W/Inspector Mukesh Devi prepared Rukka on 21.12.2016 and got the case registered.
4. I.O. taken the prosecutrix to Aruna Asif Ali Hospital where she was medically examined.
5. On 05.01.2017, accused was arrested and he was also medically examined in the Aruna Asif Ali Hospital and on 06.01.2017.
6. On 22.12.2016 statement of prosecutrix u/s 164 Cr.P.C. was got recorded by Dr. Saurabh Kulshreshtha, Ld. CMM.
7. During the course of investigation, exhibits were sent o FSL Rohini and chargesheet was filed in the court of ld. Metropolitan Magistrate. After compliance of the requirement of section 207 Cr. P.C. the case was sent to this Case No.576/2017 State Vs. Radhey Shyam Mishra 2/20 court being the designated Special Fast Track Court for trial of the offences of sexual assault against the women through the Office of Ld. District & Sessions Judge (HQ), Tis Hazari Courts, Delhi. During course of trial, I.O. of the case has also filed the FSL report in the court.
CHARGE:
8. On the basis of material available on record, this court vide order dated 22.08.2017 framed charge against accused Radhey Shyam Mishra for the offence punishable u/s 376 (2)(f) IPC to which accused did not plead guilty and claimed trial.
PROSECUTION WITNESSES:
9. In order to prove its case prosecution has examined 07 witnesses namely PW1 Prosecutrix 'KD', PW2 ASI Satyapal, PW3 Sh. Israr Babu, PW4 W/Ct. Ram Dulari, PW5 Sh. Ram Vilas, PW6 HC Gopal Singh and PW7 W/Insp. Mukesh Devi.
10. PW1 Prosecutrix 'KD' is a material witness being victim and complainant. She testified that she is 5th class pass. Her family is comprised of her husband and her four children i.e. three sons and one daughter. Her daughter is married and she resides in Nand Nagri. Her elder son is in private job. Her second elder son is doing M.A. and her youngest son is pursuing B.A. last year from Delhi University. Her husband is a contractor of plumbing work.
11. She stated that on 20.12.2016 at about 12:30 p.m. she had gone to Mishra Clinic situated at 25 Futa Road, Shani Bazar, Jharoda, Burari, Delhi for medicine. Said clinic was being run by one Dr. Radhey Shyam Mishra. On Case No.576/2017 State Vs. Radhey Shyam Mishra 3/20 seeing accused, accused identified him to be the same doctor on whose clinic she had gone to take medicine (correctly identified).
12. She further stated that when she had reached the clinic at about 12:30 p.m., no other patient was there at the clinic and accused was alone in the clinic.
Accused entertained her and she explained her problem that she was having headache and vomiting. Her treatment was already going on with the accused for mouth ulcer. Accused asked her to check her B.P. and further took her to the patient couch on that pretext. Accused asked her to lay on the patient couch behind curtain. She laid there. Accused attached the B.P. machine on her hand and gone somewhere outside in the clinic but she does not know if he had gone to bolt the door of the clinic or not. She further deposed that accused again came to her and told her that she had developed acidity and thereafter, he started pressing her stomach and also loosen the string of her salwar and also started touching her inappropriately on her breast. When she objected to it he said to her that "mein tumse pyaar karta hoon". She said to him that "yeh sab nahi chalega chhodo mujhe, nahi to halla karungi". Then accused took out a scissor from his pocket and put her under threat stating that "abhi kainchi pait mei ghop dunga". Then accused slapped her and also pushed her against the wall along the patient couch. She sustained injury on her head and she increased her headache. Then accused removed her salwar from one of her leg and committed sexual intercourse with her forcibly. Somehow she got up from the patient couch and also given kick blows to the accused to push him aside, wore her clothes and escaped from there. When she returned to home no one was there at her home. Her husband was on work. She tried to contact him on his mobile number but it could not connected on account of some signal problem. He returned to home at about 09:00 p.m. She narrated the entire Case No.576/2017 State Vs. Radhey Shyam Mishra 4/20 incident to him. Since it was night time, they did not go to police station to lodge the complaint against the accused.
13. She has proved her statement vide Ex.PW1/A. Police had also taken her to some hospital whose name she does not remember and they got her medical examination conducted vide casualty card MarkA and MLC MarkB whereon she appended her thumb impression. She has proved her statement u/s 164 Cr.P.C. vide Ex.PW1/B.
14. She deposed that the doctor had taken her clothes at the time of medical examination had handed over the same to the police which the police seized vide seizure memo Ex.PW1/C bearing her signature at point A.
15. She has correctly identified one ladies shirt and one salwar to be the same ladies shirt and salwar which she was wearing at the time of her medical examination vide Ex.P1 and Ex.P2 respectively.
16. She has correctly identified brassier to be the same brassier which she was wearing at the time of her medical examination vide Ex.P3.
17. On being cross examined by Sh. Imran Ali, Ld. counsel for accused, she deposed that the distance between her house and clinic of accused is about 10 minutes walk. Accused had been known to her for the last ten months from the date of registration of the present case. She stated that she has been benefited from the treatment of the accused for her disease of mouth ulcer. She stated that her husband also used to take medicine from accused for diabetes. Her husband was under regular treatment of the accused. She stated that she had disclosed the incident to her husband at about 09:00 p.m. on the same day. She Case No.576/2017 State Vs. Radhey Shyam Mishra 5/20 further stated that her husband had come under depression and did not take any action on that day. She admitted that her husband had talked accused on phone at 09:18 a.m. and 09:48 a.m. on 21.12.2016 while going to police station. They had reached police station within ten minutes on foot.
18. She stated that when she tried to raise alarm, accused had hit her against the wall, thereby she sustained invisible injury in her head and therefore, she became unconscious. She had stated this fact to the police in her statement under section 161 Cr.P.C. and to the Magistrate in her statement under section 164 Cr.P.C. She was confronted with statements Ex.PW1/A and Ex.PW1/B, wherein it is not so recorded.
19. She further stated that before hitting her against the wall accused had put her under fear of scissors by putting the same on her abdomen. The scissors was of 6 inches size. She had stated this fact to the police in her statement under section 161 Cr.P.C. and to the Magistrate in her statement under section 164 Cr.P.C. She was confronted with statements Ex.PW1/A and Ex.PW1/B, wherein it is not so recorded.
20. She admitted that there were shops and residential houses adjoining to the clinic of the accused. Accused had returned back to his clinic after about 0910 minutes. Accused had not closed shutter of clinic.
21. She stated that she had not changed her wearing clothes till her medical examination from the time of incident. She stated that she had established physical relation with her husband after the incident of rape and before coming to police station and her medical examination. Accused had come at her house on 21.12.2016 before her going to police station. She admitted that she did not Case No.576/2017 State Vs. Radhey Shyam Mishra 6/20 tell this fact to the police in her statement under section 161 Cr.P.C. and to the Magistrate in her statement under section 164 Cr.P.C.
22. She had denied to the suggestion that she and her husband had called accused at their house on 21.12.2016 in order to extort money or that they had extended threat to him if he would not pay the amount then they would get lodged present case against him. She had denied to the suggestion that she and her husband called the accused at their house at about 04:00 p.m. even on 20.12.2016 to demand money. She had denied to the suggestion that she and her husband got registered the present case against the accused for extorting money from him as she was not getting benefited from his treatment and she wanted to get her money paid for treatment.
23. PW2 ASI Satyapal was the Duty Officer. He proved the recording of FIR vide Ex.PW2/A (OSR).
24. PW3 Sh. Israr Babu, Alternate Nodal Officer, Vodafone Mobile Services, Ltd., has proved the certified copy of CDR of mobile number 9350824774 for the period from 20.12.2016 to 21.12.2016 vide Ex.PW3/A. She has also proved the certified copy of customer application form alongwith the proof of ID i.e. voter ID of accused/applicant vide Ex.PW3/B (colly.). He had also given certificate under section 65 B of the Evidence Act qua the aforesaid CDR vide Ex.PW3/C. He had provided the aforesaid documents to the police vide his forwarding letter vide Ex.PW3/D. He has also proved the cell ID chart vide Ex.PW3/E.
25. PW4 W/Ct. Ram Dulari deposed that on 21.12.2016, she was on duty from 02:00 p.m. to 08:00 p.m. on Women Help Desk at police station. During my duty hours at Case No.576/2017 State Vs. Radhey Shyam Mishra 7/20 about 06:00 p.m. - 06:15 p.m. prosecutrix along with her husband came to police station. She was alleging that wrong act was done with her by a doctor. Insp. Mukesh Devi examined her and recorded her statement. She deposed that then she alongwith Insp. Mukesh Devi had taken prosecutrix to Aruna Asaf Ali Hospital where prosecutrix was medically examined. The doctor who had conducted medical examination of the prosecutrix handed over me three exhibits in sealed condition to her alongwith sample seal which she handed over the same to Insp. Mukesh Devi which she seized vide seizure memo Ex.PW1/C.
26. PW5 Sh. Ram Vilas deposed that prosecutrix in this case is his wife and he is doing work of plumbing.
27. PW5 further deposed that on 20.12.2017, she does not know what had happened on that day as he was on duty. When he returned back to her house, prosecutrix was sitting while covering her face. He asked her as to what had happened. She told him that she was raped by doctor Radhey Shyam Mishra in his clinic. He was taking medicine regularly from his clinic. He further deposed that on the day of incident prosecutrix was having headache. Then she called him on phone but could not connected and due to headache she went to the clinic of the doctor/accused present in the court (correctly identified) where she was raped. He deposed that on that day he became puzzled therefore, he did not take any action.
28. He further deposed that on next day in the morning prosecutrix asked him to accompany her to police station. Accordingly, he accompanied her and firstly reached at Police Post Jharoda and after waiting there for two hours police officials suggested him to approach PS Burari. Accordingly, he reached PS Burari and handed over prosecutrix to the police and he returned back to home.
Case No.576/2017State Vs. Radhey Shyam Mishra 8/20 He deposed that police officials had got registered the case on complaint of the prosecutrix and given him copy of FIR vide Ex.PW2/A.
29. Ld. Addl. PP for State requests to ask leading question from the witness with regard to manner of rape informed to him by prosecutrix. On being cross examined by Sh. M. Zafar Khan, Ld. Addl. PP for State, he deposed that he did not inform police that his wife/prosecutrix had informed him that Dr. Mishra in order to check BP of his wife had taken her inside the room of clinic, made her lie on the bed and closed the door from inside and then committed rape with her. He admitted that t that incident is of the year 2016 and not of 2017.
30. This witness was cross examined by Sh. Ram, proxy for Sh. Imran Ali, Ld. counsel for accused in terms of order dated 31.07.2018 of Hon'ble High Court. On being cross examined by Sh. Imran Ali, ld. counsel for accused, he deposed that he has his own business of doing plumbing job. He operate from his house on calls of the parties. He usually returned from work at his house at about 06:00 or 07:00 p.m. and sometimes he became late uptill 09:00 p.m. He deposed that on 20.12.2017 he had returned to his home at about 07:00 p.m.
31. At this stage, ld. defence counsel has put a complaint undated with the permission of the court which after seeing witness admits that it is written by him and proved the same vide Ex.PW5/DX. He further admits his signature thereon at point A.
32. He admitted that he has written the complaint, Ex.PW5/DX before accused came to his house. He does not remember if he had established sexual relationship with his wife on the day of incident. He had denied to the Case No.576/2017 State Vs. Radhey Shyam Mishra 9/20 suggestion that he never went to his job or that he remained at his house or that there was a quarrel between him and accused at his clinic on the day of incident.
33. PW6 HC Gopal Singh was the MHC(M). He proved the relevant entries made in register No.19 regarding deposit of exhibits vide Ex.PW6/A. He deposed that on 09.01.2017 exhibits of this case were sent to FSL Rohini through Ct. Sachin vide road certificate no. 2/21/17. He proved the copy of road certificate vide Ex.A3 (admitted document) (OSR) and acknowledgement against deposit of exhibitors in FSL vide Ex.A4 (admitted document) (OSR).
34. PW7 W/Insp. Mukesh Devi was the Investigating Officer. She has deposed on the lines of investigation. She had recorded the statement of the prosecutrix vide Ex.PW1/A. She deposed that prosecutrix was medically examined vide MLC already MarkB. Thereafter, she prepared rukka Ex.PW7/A in police station and then presented the same to duty officer for registration of FIR. She prepared site plan vide Ex.PW7/B. She got recorded the statement of prosecutrix u/s 164 Cr.P.C. vide Ex.PW1/B.
35. She further deposed that when prosecutrix was medically examined doctor had handed over to her the exhibits of medical examination and clothes of the prosecutrix which she had seized vide seizure memo vide Ex.PW1/C.
36. She further deposed that on 25.12.2016 she had made inquiry from the neighbours at the clinic of accused Radhey Shyam. They did not give any statement but had informed her that they had not heard any kind of noise at the time of alleged incident. She further deposed that on 04.01.2017 she had Case No.576/2017 State Vs. Radhey Shyam Mishra 10/20 issued a notice under section 160 Cr.PC to accused and he came in police station on 05.01.2017. She proved the arrest memo of accused vide Ex.PW7/D. She had also prepared arrest memo of accused vide Ex.PW7/E. She got the accused medically examined in Aruna Asaf Ali Hospital vide MLC Ex.A1 (admitted document). Doctor had given blood sample of accused in gauge in sealed condition alongwith sample seal, which she had seized vide seizure memo already Ex.A2 (admitted document).
37. She further deposed that on 09.01.2017 the exhibits of this case were sent to FSL Rohini through Ct. Sachin. She had also collected and examined the call details of the mobile phone numbers of the accused and prosecutrix and the husband of the prosecutrix, which were supplied by Nodal Officer, Vodafone vide his letter already Ex.PW3/D. The call details are already Ex.PW3/A. The certificate of Nodal Officer under section 65 B of the Indian Indian Evidence Act is already Ex.PW3/C.
38. She had also filed FSL result on judicial record vide her application Ex.PW7/F bearing her signature at point A and FSL result vide Ex.PW7/G. She has correctly identified the accused in the court.
39. On being cross examined by Sh. Imran Ali, Ld. counsel for accused, she deposed that prosecutrix had told her that she had come from her house. She deposed that she had inspected the clinic of accused after his arrest. There was a stretcher in the clinic of the accused. There was no door which might be bolted from inside. She deposed that prosecutrix did not inform her that she had also gone at Police post Jharoda before coming to PS Burari.
Case No.576/2017State Vs. Radhey Shyam Mishra 11/20 STATEMENT OF ACCUSED U/S 313 CR.P.C.:
40. After the prosecution evidence, statement of the accused u/s 313 Cr.P.C. was recorded. Accused denied all the incriminating evidence against him. Accused claimed that he is innocent. He is a homeopathic doctor and was running his clinic in a shop at Main Road Shani Bazari, 25 Futa Road, Jharoda, Burari, Delhi. Prosecutrix was under his treatment for her mouth ulcer for about 78 months. On the date of alleged incident prosecutrix called on his phone and asked if he was available in the clinic. He told her to come to the clinic as he was there. Prosecutrix came alone to his clinic. At the time when he was preparing medicines for her, her husband came inside the clinic and asked him to check her B.P. He checked the B.P. After that husband of the prosecutrix said that for such a long time his wife was undergoing treatment but there was no improvement in her condition. Husband of the prosecutrix also said that he had spent Rs.15000 to Rs.20000/ on the treatment of his wife. He further stated that he said that he does not to continue the treatment and also scolded his wife not to come to his clinic again. Husband of the prosecutrix asked him to pay back amount of money he had spent on the treatment. He told him that he only take Rs.100 for medicine how can it be Rs.15000/ - Rs.20000/. He further stated that on this husband of the prosecutrix started shouting on him and took the prosecutrix back to his house.
41. He further stated that at around 04:00 p.m. on the same day husband of the prosecutrix called him from his mobile phone number and demanded Rs.1 lac from him, otherwise he threatened him to file a case against him. When she tried to pacify him over the phone, he asked him to come to his house, otherwise he would go to police station. He went to the house of prosecutrix, Case No.576/2017 State Vs. Radhey Shyam Mishra 12/20 and husband of the prosecutrix shown him the complaint already written by him. He had said either he should pay Rs.1 lac otherwise he would file the said complaint with the police. He had given him the complaint and said that he should think over it and get back to him. He told that he is not going to pay any money as he had not committed any offence and charged only for his medicines. On the same day at about 08:00 p.m. husband of the prosecutrix again called him and repeated his demand. He refused to meet his demand.
42. He further stated that next day in the morning again husband of the prosecutrix called him and told him that he is going to police station if he does not pay him money by the noon time. Afterwards he again called him 34 times and he had refused to pay him money. He further stated that present case is the consequences of the same. He has been falsely implicated by him in the present case. Accused has not preferred to lead defence evidence.
ARGUMENTS:
43. Ld. counsel for accused argued and submitted that in MLC of prosecurtrix, there is no injury on the person of prosecutrix and no findings that rape is committed.
44. Ld. counsel for accused further submitted that in the FSL repot semen was traced on the Ex.2B but same is not similar to the DNA profile of accused. Husband of prosecutrix made five calls to the accused before registering the FIR.
45. Ld. counsel for accused further submitted that I.O. suggested that there is no provision of locking the door from inside the clinic of the accused.
Case No.576/2017State Vs. Radhey Shyam Mishra 13/20
46. Ld. counsel for accused further submitted that PW5/DX which was admittedly written by the husband of the prosecutrix suggest that there are two versions of the incident and FIR is different from the complaint he has given to the accused.
47. Ld. counsel for accused further submitted that I.O. has stated that neighbour of accused has not noticed any hue and cry in clinic.
48. Ld. counsel for accused further submitted that the prosecutrix told about the incident to her husband at 9:00 p.m. but her husband already made two phone calls to the accused at 4:00 p.m. and 8:00 p.m. which is Ex.PW3/A. The prosecutrix and her husband has made physical relations on the date of incident before the registration of FIR. Prosecutrix in her statement u/s 161 Cr.P.C. and 164 Cr.P.C. stated that she has come to the PS on next day after her husband returned from work. On these grounds, ld. counsel for accused has prayed that accused may kindly be acquitted.
49. On the other hand, Ld. Addl. PP for the State submitted that prosecutrix has supported the case of prosecution on all material facts. Testimony of prosecutrix is reliable and trustworthy and she has explained the delay in reporting the matter to police. As such, accused may be convicted.
PERUSAL OF RECORD:
50. Arguments heard. Record perused. On perusal of record, it is revealed that on the statement of prosecutrix Ex.PW1/A, present FIR Ex.PW2/A was registered against the accused.
Case No.576/2017 State Vs. Radhey Shyam Mishra 14/20
51. It is further revealed that prosecutrix was medically examined vide casualty
card, MarkA and MLC, MarkB. PW1 prosecutrix identified her wearing
clothes which she was wearing at the time of her medical examination i.e. one ladies shirt Ex.P1, one salwar Ex.P2 and one brassier Ex.P3.
52. It is further revealed that PW2 ASI Satyapal was working as Duty Officer and registered FIR, Ex.PW2/A on the basis of rukka, Ex.PW1/A received from W/Insp. Mukesh Devi; he also made his endorsement, Ex.PW2/B; he also gave certificate, Ex.PW2/C under 65 B of the Evidence Act regarding correct contents of computerized copy of FIR.
53. It is further revealed that PW3 Sh. Israr Babu, Alternate Nodal Officer, Vodafone Mobile Services has proved the CDR, Ex.PW3/A pertaining to mobile phone number 9350824774 of the period 20.12.2016 to 21.12.2016 subscribed in name of accused. PW3 Sh. Israr Babu also proved customer application form alongwith proof of ID i.e. copy of voter ID of accused vide Ex.PW3/B (colly.). PW3 Sh. Israr Babu has also produced certificate under section 65 B of the Evidence Act, Ex.PW3/C qua the said aforesaid record. He had provided the aforesaid documents to the police vide his forwarding letter, Ex.PW3/D. He has also produced the cell ID chart of the company, Ex.PW3/E.
54. It is further revealed that PW6 HC Gopal Singh has produced the relevant entries of register no.19, Ex.PW6/A pertaining to this case. PW6 HC Gopal Singh also produced road certificate, Ex.A3 (admitted document) by which the exhibits were sent to FSL Rohini. He also produced acknowledgment, Ex.PWA4 (admitted document) against which the said exhibits were deposited at FSL Rohini.
Case No.576/2017State Vs. Radhey Shyam Mishra 15/20
55. It is further revealed that PW7 W/Insp. Mukesh Devi prepared site plan, Ex.PW7/B.
56. It is further revealed that statement of prosecutrix under section 164 Cr.P.C.
was recorded vide Ex.Ex.PW1/B by ld. MM.
57. It is further revealed that I.O. had formally arrested the accused and recorded his disclosure statement, Ex.PW7/D and prepared his arrest memo, Ex.PW7/E. Accused was medically examined vide MLC Ex.A1.
58. It is further revealed that I.O., on 09.01.2017 sent the exhibits of this case to FSL Rohini through Ct. Sachin. She had also collected and examined the call details of your mobile phone number and mobile phone numbers of prosecutrix and her husband, which were supplied by Nodal Officer, Vodafone vide his letter, Ex.PW3/D; the call details are Ex.PW3/A.
59. It is further revealed that I.O. had also filed FSL result, Ex.PW7/G on judicial record vide her application, Ex.PW7/F.
60. Before reaching at any conclusion, let the relevant sections i.e. 376 (2)(f) IPC be reproduced, which are as under: Section 376 (2) (f) IPC:
(2) Whoever,
(f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman;
shall be punished with rigorous imprisonment for term which shall not be less than 10 years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine.
FINDINGS:
61. Arguments heard. Record perused. On perusal of record, it is revealed that present case was registered on the statement of prosecutrix Ex.PW1/A. Prosecutrix has been examined as PW1.
Case No.576/2017State Vs. Radhey Shyam Mishra 16/20
62. From the perusal of testimony of prosecutrix it has come on record that on 20.12.2016 at about 12:30 p.m. she had gone to clinic of the accused for medicine and that no patient was there and accused was alone and accused had entertained her and she explained her problem that she was having headache and vomiting. Her treatment was already going on with the accused for mouth ulcer. Accused had asked her to check her B.P. and further took her to the patient couch behind curtain and she laid there and accused attached the B.P. machine on her hand and gone somewhere outside in the clinic. Accused again come to her and told her that she had developed acidity and thereafter, he started pressing her stomach and also loosen the string of her salwar and also started touching her inappropriately on her breast on the pretext when she objected to it he said to her that 'main tumse pyaar karta hoon'. She said to him that "yeh sab nahi chalega chhodo mujhe, nahi to halla karungi". Then accused took out a scissor from his pocket and put her under threat stating that 'abhi kainchi pait mei ghop dunga'. Accused scolded her and also pushed her against the wall along the patient couch. She sustained injury on her head and she increased her headache. Then accused removed her salwar from one of her leg and committed sexual intercourse with her forcibly. She further deposed that her husband returned to home at about 9:00 p.m.
63. Now question arise that when her husband come at house at 9:00 p.m. why she did not got to the police station to get registration the present complaint. Further, on next morning at 9:00 p.m. when prosecutrix deposed that she along with her husband went to Police Post Jharoda and from there she was sent to PS Burari and made her complaint Ex.PW1/A. In her cross examination by ld. Counsel for accused, prosecutrix first admitted the suggestion that he had made call to the accused on the day of incident at about 12:35 p.m. while asking him if she can come to his clinic. She again deposed that she had spoken with Case No.576/2017 State Vs. Radhey Shyam Mishra 17/20 accused on that day on telephone to inquire if she could come for treatment.
64. Again in her cross examination, she submits that her husband returned at 8:30 p.m. on the day of incident. Prosecutrix admitted that she had disclosed the incident to her husband at about 9:00 p.m. on the same day and she further submitted that her husband had come under depression and did not take any action on that day which is very shakky type of submission that her husband had come under depression on coming to know about the incident. On next day, this witness had gone to police station with her husband at about 10:00 a.m. She admits that her husband was with her from 9:00 a.m. to 10:00 a.m. on 21.12.2016 i.e. next day of the incident. This witness admits that she has not changed her wearing clothes till her medical examination from the time of incident of rape. She admits that she had established physical relation with her husband after the incident of rape and before coming to police station and her medical examination. Prosecutrix has established phyiscal relation with her husband on 21.12.2016 it proves that he established physical relation with her husband and under depression sexual intercourse by her husband with prosecutrix not possible. On this point testimony of prosecutrix is appears to be false.
65. Her statement u/s 161 Cr.P.C. and u/s 164 Cr.P.C. has been confronted on the fact that when she tried to raise alarm, accused had hit her against the wall, thereby she sustained invisible injury in her head and therefore, she became unconscious.
66. This witness had been confronted with her statement u/s 161 Cr.P.C. and u/s 164 Cr.P.C. on the fact that before hitting her against the wall accused had put her under fear of scissors by putting the same on her abdomen. The scissors was of 6 inches size.
Case No.576/2017State Vs. Radhey Shyam Mishra 18/20
67. Further, PW5 Sh. Ram Vilas who is the husband of prosecutrix. This witness submits that on 21.12.2017, he does not know what had happened on that day as he was on duty and when he returned to his house, prosecutrix was sitting while covering her face. He asked her as to what had happened. She told that she was raped by accused in his clinic and on that day he become puzzled therefore he did not take any action. He further deposed that on next day in the morning prosecutrix asked him to accompany her to police station. Accordingly, he accompanied her and firstly reached at police post Jharoda and thereafter, she was suggested to approached PS Burari. In his cross examination by counsel for accused, this witness submits that on 20.12.2016, he returned at 7:00 p.m. and on that day he was working in the area of Camp, Delhi. He also submitted that he did not go to the police station on that day. On hearing from his wife he become depressed. This witness submits that he does not remember if he had established sexual relationship with her wife on the day of incident. This witness denied to the suggestion that he had made a call in the morning on 21.12.2016 but again said as far as he remember he had made one phone call at about 9:00 p.m., on 21.12.2016.
68. From the testimony of these two witnesses it is clear that both witnesses submits that accused had committed rape with the prosecutrix but on the fact of time of arrival of husband of prosecutrix at home is different. Prosecutrix stated that her husband had come house at about 9:00 a.m. on the day of incidence whereas her husband had stated that he had come to home at about 7:00 p.m. on the day of incident but none of them approached to PS on that day. Neither they informed the neighbouring person that accused had committed rape with her nor made call to police on 100 number on that day. Delay was not explained. Mere saying that her husband had become depressed is not sufficient to presume that he was not in position to take action against the Case No.576/2017 State Vs. Radhey Shyam Mishra 19/20 accused or to call police on 100 number.
69. MLC of the prosecutrix Ex.A3 suggest that no fresh external injury present at the time of external examination. Gyane report also suggest hymen old torn and no fresh external injury which proves that prosecutrix has been failed to prove its case against the accused beyond reasonable doubt. Accordingly, accused Radhey Shyam Mishra is acquitted from the charges u/s 376 (2)(f) IPC by giving him benefit of doubt.
70. In terms of section 437 A Cr. P.C. accused is directed to execute bail bond in sum of Rs.25,000/ with one surety in the like amount.
71. Since prosecutrix misused the due process of law, hence, no compensation is awarded to her.
72. File be consigned to record room.
PRONOUNCED IN THE OPEN COURT ON 07.09.2018.
(RAMESH KUMARII) ASJ/SFTC2(CENTRAL), TIS HAZARI COURTS, DELHI.
Digitally signed by RAMESH KUMAR RAMESH Date:
KUMAR 2018.09.10
15:31:35
+0000
Case No.576/2017
State Vs. Radhey Shyam Mishra 20/20