Delhi District Court
State vs . Virender Kumar Nigam on 29 January, 2011
State Vs. Virender Kumar Nigam
IN THE COURT OF SHRI GURVINDER PAL SINGH
ADDL. SESSIONS JUDGE(FTC), SOUTH DISTRICT
SAKET COURTS, NEW DELHI
Session Case No. 64/09
ID No: 02403R0423902004
State Vs. : Virender Kumar Nigam
S/o Sh. G.P Nigam
R/o D1/1426, Vasant Kunj,
New Delhi
FIR No. 284/2003
P.S. Vasant Vihar
U/s 376/511/377 IPC
Date of Institution : 21/07/2004
Date when arguments
were heard : 19/01/2011
Date of Judgment : 28/01/2011
JUDGMENT
BRIEF FACTS:
SC No. 64/09 1/65
State Vs. Virender Kumar Nigam Adumbrated in brief the facts of the prosecution case are as follows:
The prosecutrix, stated of age 13 years, had been visiting Dr. Virender Kumar Nigam, the accused, since 19/09/2003 at Holy Angels Hospital for her treatment alongwith her aunts Ms. Sonam, PW5 and Ms. Dolma. On 23/09/2003, which was her third visit to the hospital, she alongwith her above said aunts reached the doctor at about 11 am, when she was called inside by the accused and her aunts were made to wait outside. The accused bolted the door from inside. He first examined her hands, then to examine her knees asked her to lift her pant but she refused. Thereafter accused made her lie down on the patient's bed and removed all her clothes, he kissed her, pressed her breast. He allegedly had unnatural sex with her from behind and he also tried to rape her. He also had oral sex with her and asked her to wear her clothes and called her aunts. Whenever she tried to get up, she was pressed on the bed by the accused. After about 15 minutes, he called her aunts inside and told them that he had completed with the check up of the prosecutrix. The prosecutrix after coming out of the doctor's room informed her aunts about the SC No. 64/09 2/65 State Vs. Virender Kumar Nigam incident. Her aunts raised an alarm and had an altercation with the doctor. Thereafter she was taken to her home. From there she alongwith her mother and other relatives came to the police station and lodged a complaint against the accused on the basis of which present FIR was registered. During the investigation of the case, accused was arrested. Prosecutrix and accused were got medically examined. The bony age of the prosecutrix was also got determined. The Investigating Officer, PW21 SI Asha Sinha recorded the statements of the witnesses and after completion of the investigation, charge sheet was filed in the court.
2. After compliance of Section 207 Cr.P.C, the matter was committed to the court of Sessions.
CHARGE:
3. In terms of order on charge dated 16/10/2004, charge for the offences under Sections 376 read with section 511 IPC and 377 IPC was framed against the accused by my Ld. Predecessor to which he pleaded not guilty and claimed trial.
SC No. 64/09 3/65
State Vs. Virender Kumar Nigam PROSECUTION EVIDENCE:
4. In order to connect the accused with the offences alleged, the prosecution has examined in all 21 witnesses. STATEMENT OF ACCUSED:
5. The incriminating evidence in the statement of witnesses was explained to the accused when he was examined under Section 313 Cr.P.C by my Ld. Predecessor. The accused pleaded innocence and false implication. The accused admitted that he was working as doctor in Holy Angels Hospital, Basant Lok, New Delhi in between 19/09/2003 to 23/09/2003; that on 19/09/2003, 22/09/2003 and 23/09/2003 he had examined and given prescription to the prosecutrix for the treatment of boils. Accused denied of having told the aunts of prosecutrix to sit outside on 23/09/2003. Accused also denied to have asked the prosecutrix to lay down on the patient's bed, removed her worn pant, her underwear or having opened the zip of his pant or having done any unnatural sex by penetrating his penis from back of prosecutrix or having done oral sex or having attempted to rape the prosecutrix or having pressed her breast or having kissed her. SC No. 64/09 4/65
State Vs. Virender Kumar Nigam Accused also denied of having apologized to the aunts of the prosecutrix or having requested them not to disclose the incident to anyone or having offered any money for hushing up the matter. Accused stated that he had been falsely implicated in this case stating that the prosecutrix was a victim of known case of Tuberculosis with oozing wound on the hand was diagnosed by him as a confirmed case of T.B. Accused stated that as T.B is a highly contagious disease, no doctor or even a layman would come in close contact with the patient. Accused stated that he never examined the proseuctrix in his chamber but on both the occasions prosecutrix was taken to casualty where her bandage were opened and the dressing was done by the nursing staff and only at that time he had seen the wound. Accused stated that he alongwith his wife were in the OPD on 23/09/2003, while his wife had a delivery case and she was there all the time in the OPD and subsequently her patient delivered at around 4 pm on the same day. The accused stated that on 23/09/2003 when the prosecutrix came in the OPD, there were around 50 to 60 patients, receptionist, doctors and other staff, while the chambers were interconnected and opened from the top, even a slight noise can be SC No. 64/09 5/65 State Vs. Virender Kumar Nigam heard by others outside his chamber. The accused stated that he has been framed with ulterior motives alleging such incident cannot take place in his chamber where he was practicing as a doctor. DEFENCE EVIDENCE:
6. The accused entered upon his defence and examined himself as DW1, Dr. Ajay Kumar as DW2.
7. In the course of his examination as DW1, accused stated that he was Medical Specialist having M.D (Medicine) Degree and an honorary consultant with Holy Angels Hospital since 1988; he was a married person having got married with Dr Suman Nigam in the year 1982 who was Gynaecologist, working in the same hospital since 1996, besides, having two daughters of age 24 years and 22 years.
Accused stated that his elder daughter was pursuing Post Graduation course in International Business and younger one was doing her Master Degree in Mass Communication from Symbiosis School, Pune. He stated that his daughters were staying in hostels. During the year 2003, as per DW1, there were around 10 honorary doctors in the SC No. 64/09 6/65 State Vs. Virender Kumar Nigam OPD, 15 support staff, while the OPD was situated in the basement of the hospital. DW1 stated that there were 14 Doctor's Chambers, a Reception, Patients Waiting Lounge, a Chemist Shop, Xray Unit, Ultra Sound, Physiotherapy and Medical Superintendent Office. The Hall at the basement was centrally air conditioned and by wooden partitions around 14 chambers for doctors have been installed. The height of the partition wall was about 78 feet and there was grill up to the roof. Accused as DW1 proved on record the photographs Exts DW1/A, DW1/B and DW1/C reflecting the Hall of the OPD, Chamber no. 8 in which accused used to sit. Accused stated that the height of the examination of the patient Couch was thirty three inches and width was twenty and half inches. As per DW1, his height while wearing shoes was around 164 cm which was approximately five feet and five inches. Later DW1 stated his height was five feet six and half inches with shoes. DW1 further stated that height of his pubic symphysis from ground was 28 inches. DW1 stated that the Buas of the prosecutrix had brought her for examination in the OPD of the hospital on the date of incident and after her clinical examination, he found that she was having bone tuberculosis. The prescription SC No. 64/09 7/65 State Vs. Virender Kumar Nigam written by DW1 on 23/09/2003 was Ex PW8/C. DW1 stated that the prosecutrix reported to him in the chamber with her Buas, however, he had examined her in casualty also. Advice of the treatment is in the prescription Ex PW8/C. DW1 stated that the prosecutrix had left his chamber with her Buas and after sometime they had again come to the OPD of the hospital and started shouting and making allegations of molestation of the prosecutrix against him and at that time the Medical Superintendent of the hospital and others had come there and he had denied the allegations and requested the Medical Superintendent to either conduct the investigation himself or to call the police. DW1 stated that however in the late evening of that day, he had received a call from the hospital that some women are there in the hospital and that he was required to come to the hospital and talk to them. DW1 then had gone to hospital where he met the police officials and Buas of the prosecutrix and had accompanied them to police station Vasant Vihar. DW1 stated that in the police station there was lady named Neetu Soni who had demanded money from him for settlement of the case but accused, DW1, refused to make any payment. DW1 stated that his colleague had also come to the SC No. 64/09 8/65 State Vs. Virender Kumar Nigam police station. As per DW1, there were about 50 to 60 patients who were present apart from about 14 to 15 Doctors and their staff when he had examined the prosecutrix in his chamber on the alleged date and time of the occurrence. DW1 stated that his wife who was also Gynaecologist was also present in the hospital at that time since she had come there on that day as a visiting doctor. DW1 stated that he has been falsely implicated in this case at the instance of Dr. Rajat Mitra, who was a Psychologist and heading a NGO by the name of Swan Chetan and who was also his neighbor. DW1 stated that sometime in the month of mid May, 2003, the said Dr. Rajat Mitra had come to his clinic at his residence with one girl who was perhaps belonging to NorthEast region and asked about his wife. DW1 stated that he had not met the said individual earlier and had asked him to introduce himself on which he had introduced himself as above and asked DW1 to arrange for the abortion of the said girl who according to him was pregnant. DW1 had refused to comply with his request, on which Dr. Rajat Mitra had become angry and had threatened DW1 that he would see him. DW1 stated that he had seen Dr. Rajat Mitra with his wife Mrs Nidhi Mitra at the police SC No. 64/09 9/65 State Vs. Virender Kumar Nigam station where he had been detained in this case and wife of Dr, Rajat Mitra was present with the prosecutrix at that time. When DW1 was detained in judicial custody in this case, the said Dr. Rajat Mitra had written offensive articles against him in the daily newspapers. DW1 stated that his consultation chamber in the OPD in the hospital was having three feet high iron mesh above the front wooden partition.
8. DW2 Dr. Ajay Kumar from Safdarjung Hospital had taken the measurement of the accused in the chamber of my Ld. Predecessor. DW2 stated that, as per the measurement taken, the measurement from ground up to middle of root of penis of the accused was 28 inches from ground, without shoes worn by the accused.
9. I have heard the arguments of Ld. Addl. PP for the State, Ld. Counsel for the accused and the accused and have perused the record including the evidence and given my thoughts to the rival contentions put forth.
SC No. 64/09 10/65
State Vs. Virender Kumar Nigam
10. Ld. Defence Counsel for accused argued that the occurrence, as per version of the prosecutrix, was not only improbable but infact impossible. At the outset, he submitted that the conduct of the prosecutrix was highly unnatural as she did not raise any hue, cry or alarm when she was allegedly sexually assaulted, her version is suffering from contradictions, her version is not supported by the medical evidence since on local examination by the doctor, hymen of prosecutrix was found intact, there were no evidence of scratch mark/violence, no excoriation seen externally on vulva or anus, there was no evidence of local injury on breast or any sign of struggle or even tenderness over breast, nipples of the prosecutrix; even the prosecutrix before examining Dr. Pooja, PW3, did not complain of any history of sodomy; prosecutrix was a grown up girl, competent to resist, if the accused as a doctor had gagged her mouth by one hand for 10 to 15 minutes, the hands and the legs of the prosecutrix were free and she being stout built girl could have resisted and could even free herself in the course of such alleged assault or could have even raised any kind of hue, cry or noise to be heard by one and all persons outside the doctor's room in the OPD in the Basement of SC No. 64/09 11/65 State Vs. Virender Kumar Nigam Holy Angels Hospital; the prosecutrix though alleged that accused did all acts while standing, since the height of the Couch was 33 inches and the height of public symphysis of accused from ground was 28 inches, it was virtually impossible for the accused to have either attempted rape or sodomy, as alleged, with the prosecutrix, which even was not possible in the position of prosecutrix either lying or when she took turn; the prosecutrix was tutored witness and the accused being Doctor was aware that the prosecutrix was suffering from contagious disease i.e Tuberculosis and that the two females viz. Buas of the prosecutrix were sitting outside the doctor's room, so the accused was framed in this case, while the bed sheet, in question, was picked up from pile and not from the doctor's room of accused and the investigating officer even did not seize the Couch, other articles from the doctor's room nor took photographs of the alleged scene of crime. Ld. Defence Counsel stated that the accused is entitled for the benefit of doubt as the prosecution case has not been proved, beyond reasonable doubt. Ld. Defence Counsel relied upon the following judgments:
1. Abdul Salam vs. State, 120 (2005) DLT 336 ; SC No. 64/09 12/65
State Vs. Virender Kumar Nigam
2. Sadashiv Ramrao Hadbe vs. State of Maharashtra & Anr., (2006) 10 SCC 92;
3. Aman Kumar & Anr. vs. State of Haryana, 2004 Cri.L.J 1399;
4. Dilip & Anr. vs. State of M.P., 2001(4) Crimes 105 (SC);
5. Tarkeshwar Sahu vs. State of Bihar, (2006) 8SCC 560;
6. Kuldeep K Mahato vs. State of Bihar, 1998 Cri.L.J 4033 (SC);
7. Lalliram & Anr. vs. State of M.P, (2008) 10SCC 69;
8. Ramji Lal vs State, 1994 JCC 691;
9. Jai Chand vs. State, 1996 JCC 294;
10.Salim vs State, 2010 (1) LRC 431 (Del);
11. Rajoo & Ors. vs State of M.P, AIR 2009 SC 858;
12.Tameezuddin @ Tammu vs State of (NCT) of Delhi, 2009 (12) SCALE 303;
13. Gowrishankara Swamigalu vs State of Karnataka & Anr., (2009) 2 SCC (Cri) 813.
11. Ld. Addl. PP for the State argued that the manner in which the prosecutrix alleges the offences to have been committed against her is probable as even in the photograph, Ex DW1/C, filed SC No. 64/09 13/65 State Vs. Virender Kumar Nigam and proved on record by the accused besides the Couch viz. the patient's bed, in the examination room of doctor i.e the scene of crime, there is a standing step visible having two steps upon which one can stand at the time of even examination and if one stands so, then also such offences, as alleged, are probable. Ld. Addl. PP further argued that the prosecutrix was having no animus to falsely implicate the accused and in view of the law of land, any minor contradiction or inconsistency cannot be formed a basis of acquittal of the accused since the offences complained against the accused by the prosecutrix when seen with the attending circumstances proved on record establish the guilt of the accused, beyond reasonable doubt. Also, Addl. PP argued that on the bed sheet of the Couch, recovered from the doctor's room, the semen of 'O' Group was detected in the FSL report which matched with the 'O' Blood Group of accused. Ld. Addl. PP argued that the accused had removed the clothes of the prosecutrix viz. pant and underwear upon which he opened the zip of his pant and had attempted to commit rape upon the prosecutrix and had even committed the act of sodomy beside outraging her modesty by doing oral sex, kissing her and pressing her breast. Ld. SC No. 64/09 14/65 State Vs. Virender Kumar Nigam Addl. PP submitted that the minor girl of age 14 years cannot be expected to give the minute or precise details of the such sexual assault and the acts of the accused, complained, constituted attempt. Ld. Addl. PP argued that no probable defence of false implication have been proved by the accused and the statement of the prosecutrix being substantive evidence on record is to be believed upon to convict the accused.
OFFICIAL WITNESSES:
12. PW10 W/Ct. Neelam had taken the prosecutrix on 23/09/2003 to Safdarjung Hospital for her medical examination. Examining doctor handed over two sealed pullandas and sample seal to PW10 which she handed over to IO vide memo Ex PW10/A.
13. PW11 Ct. Dharamvir had taken accused on 24/09/2003 to Safdarjung Hospital for medical examination. After medical examination, the doctor on duty handed over him a pullanda containing underwear of the accused and a blood gauze containing blood sample of the accused and the sample seal which were seized SC No. 64/09 15/65 State Vs. Virender Kumar Nigam vide memo Ex PW11/A.
14. PW12 ASI Kehar Singh is the duty officer and has proved his scribed FIR No. 284/03 as Ex PW12/A.
15. PW 13 Ct. Pawan Kumar deposed of having taken the exhibits of this case with sample seal on 12/11/2003 and deposited in FSL Malviya Nagar vide RC No. 33/21, during which period they were not tempered with.
16. PW15 HC Shree Kumar deposed of being Mal Khana Moharar in police station Vasant Vihar and having received three sealed pullandas and sample seal on 23/09/2003 from IO, PW21 SI Asha Sinha; two sealed pullandas and a sample seal on 24/09/2003 also from IO, PW21 SI Asha Sinha and on 12/05/2005 five sealed pullandas, FSL report from PW18 Ct. Rakesh regarding which he made relevant entries Ex PW15/A, PW15/B and PW15/C in register no. 19.
SC No. 64/09 16/65
State Vs. Virender Kumar Nigam
17. PW16 ASI Sudesh Kaushik in the course of investigation had sent the exhibits of the case to FSL, Malviya Nagar through Ct. Pawan Kumar, PW13 on 12/11/2003.
18. PW17 SI Raj Kumar deposed of having taken the accused with IO/PW21 SI Asha Sinha to Safdarjung Hospital on 24/09/2003 for medical examination. The doctor had handed over him a bottle containing blood gauze, parcel of of underwear of accused and sample seal which were seized vide memo Ex PW11/A. PW17 collected the FSL reports.
19. PW18 Rakesh had brought the FSL results on 12/05/2004.
20. PW21 SI Asha Sinha is the investigating officer of this case who inter alia made endorsement Ex PW21/A after recording the statement of prosecutrix, Ex PW1/A and got case registered; prepared rough site plan Ex PW21/B; seized bed sheet, Ex P2, from room no. 8 of Holy Angels Hospital vide memo Ex PW8/A; got the SC No. 64/09 17/65 State Vs. Virender Kumar Nigam prosecutrix and the accused medically examined; arrested the accused vide memo Ex PW21/D and his personal search memo Ex PW21/E; also got the Oscification test of the prosecutrix done and the Bone Age Report of prosecutrix is Ex PW2/A. MEDICAL WITNESSES
21. PW2 Dr. Shabname Bhandari has proved the bone age report of prosecutrix, Ex PW2/A submitting that the prosecutrix was examined by PW2, Dr. Ritu Vinayak and Dr. B.B Thukral and as per their opinion the bone age of prosecutrix was between 15 to 18 years but the prosecutrix was definitely below 18 years of age, though it could not be definitely said as to whether the prosecutrix was 15 or 16.
22. PW3 Dr.Pooja from Safdarjung Hospital deposed that she was Sr. Resident on 23/09/2003 and had examined prosecutrix brought by police with alleged history of sexual assault, molestation and rape by accused at 11 am. PW3 stated that on the examination of the prosecutrix, her hymen was found intact, no evidence of scratch SC No. 64/09 18/65 State Vs. Virender Kumar Nigam mark/violence, no excoriation was seen externally on vulva or anus; no evidence of local injury on breast; no sign of struggle, tenderness over breast, nipples of the patient and she did not find any type of injury of violence during examination of private parts of the prosecutrix besides which there was no scratch or redness or any type of injury on anal region. PW3 narrated that as per MLC, there was no history of sodomy. PW3 had also stated that she had ascertained from the prosecutrix who had stated that she had not changed the clothes after assault. PW3 stated that the underwear of the prosecutrix, her pubic hair, vulval swab, vaginal swab were sealed with the seal of hospital and handed over to the police. PW3 has proved her report as Ex PW3/A.
23. PW4 Dr. Rajender Kumar, Sr. Scientific Officer of FSL deposed of having received five sealed parcels and on examination detected blood to be of 'O' Group on Ex 6 i.e blood stains gauze piece viz. blood of accused and on serological examination, semen of 'O' Group was detected on the bed sheet, then Ex 1, later which is exhibited as Ex P2. PW4 also deposed that on the underwear, later SC No. 64/09 19/65 State Vs. Virender Kumar Nigam on exhibited as Ex P1, worn by prosecutrix at the time of occurrence, semen was detected but no reaction was there for test of blood group and the semen could be of any group. On the pubic hair, vulval swab and vaginal swab of the prosecutrix, semen could not be detected. PW4 has proved his reports as Exts PW4/A and PW4/B respectively.
24. PW9 Dr. Alexander F.Khan deposed that on examination of X ray plates of the prosecutrix, he was of the opinion that her age was 15 to 18 years as on 25/09/2003 and he has proved his report as Ex PW9/A.
25. PW14 Dr. Komal Singh deposed that on 24/09/2003, accused was brought under custody and was medically examined. PW14 stated that on examination, it was seen that there were no marks of struggle over the clothes, no sign of struggle or any trauma over the body and in local examination, genital were normal, secondary sexual character were present but smegma was absent. As per opinion of PW14, there was nothing to suggest that the accused SC No. 64/09 20/65 State Vs. Virender Kumar Nigam incapable of performing sexual intercourse and the sexual intercourse in the past 36 hours could not be ruled out. PW4 has proved the MLC of accused as Ex PW14/A. FORMAL WITNESS:
26. PW19 Sh Amar Singh Sagar testified that his vehicle TSR no. DL1RG2600 was used as transport by the prosecutrix and her relatives for going to Holy Angels Hospital and later again to police station.
MATERIAL WITNESSES:
27. PW1 is the prosecutrix who stated her age about 15 years as on 01/02/2005, on the date of her deposition. PW1 stated that she had developed boils on her ankle and elbow, for treatment of which she had made visits on 19/09/2003, 22/09/2003 and 23/09/2003 with her aunts to Holy Angels Hospital, where she was checked and treated by Dr. Nigam, the accused. PW1 stated that on 23/09/2003 at about 11 am on reaching the said hospital, when they went to the accused/doctor, accused told her aunts to sit outside stating they SC No. 64/09 21/65 State Vs. Virender Kumar Nigam might develop infection from the machine. The aunts of PW1 went out of the room. PW1 stated that the accused asked her to lay down on the patient's bed and she did as was told. PW1 stated that the accused then removed the pants worn by PW1, pursuant to which the accused removed the underwear of the prosecutrix. PW1 stated that thereafter accused opened the zip of his pant and then "Unhone Peeche Se Aur Aage Se Kiya". PW1 stated that the accused penetrated his penis from back as well as from front side, accused had also put his penis in her mouth , kissed her and also pressed her arm at the place which was injured. PW1 stated that thereafter accused made her get up and stand and to wear the clothes, then opened the door and called her aunts inside and told them that he had completed his check up and gave them the prescription and when the prosecutrix with her aunts went out of the room to get the medicines, PW1 narrated the incident to her aunts. PW1 stated that both her aunts went inside the room of the accused, asked him but the accused closed the door, apologized by touching the feet of her aunts and requested them not to disclose this incident to anyone as he would be insulted and humiliated, saying that he had been SC No. 64/09 22/65 State Vs. Virender Kumar Nigam treating her. The accused told the bua of PW1 that she was cured because of his treatment, even because of the same he should be pardoned. The aunts of PW1 called the mother of PW2 on telephone, upon which she reached the hospital. On reaching the cabin of the accused, the accused tried to hush up the matter by offering some money to which the mother of the prosecutrix refused. Later the prosecutrix with her relatives went to Malcha Marg police station then to Vasant Vihar police station where she made statement Ex PW1/A. In the course of her cross examination PW1 stated that accused did all acts while standing and in the entire incident, which took about 10 to 15 minutes, sometimes the accused asked PW1 to turn towards left and sometimes towards right and sometimes she was laying on her back, while PW1 was changing her position on the bed as per the direction of the accused/doctor. Also, PW1 elicited in the course of her cross examination that the accused had penetrated from behind but attempted to penetrate from her front side but had not actually penetrated. PW1 also clarified that the accused himself did not penetrate into her vagina and stated that her statement that accused had attempted to commit rape as made in the cross examination was SC No. 64/09 23/65 State Vs. Virender Kumar Nigam correct, while under misconception she could not describe the incident properly in her examination in chief when she said that she was raped from front. PW1 admitted that she did not shout nor screamed in the course of occurrence even when the accused touched her wound on her elbow.
28. PW5 Ms. Sonum is the aunt of prosecutrix, PW1 and has corroborated the version of PW 1 narrating of having taken the prosecutrix on 19/09/2003, 22/09/2003 and then on 23/09/2003 to accused/doctor for treatment in Holy Angels Hospital. PW5 stated that on the day of occurrence, accused had asked her and his sister Dolma to sit outside the chamber as he has to check the prosecutrix on machine. Thereafter they had came outside the chamber after leaving prosecutrix there. After 15/20 minutes PW5 and her sister were called inside the chamber and accused told them that he had checked the prosecutrix and told them to sit outside the chamber as he had to give some injection to prosecutrix. After 10 minutes accused came outside the chamber and went away. The prosecutrix narrated to her aunt, PW5 saying she was attempted to rape by the SC No. 64/09 24/65 State Vs. Virender Kumar Nigam accused/doctor who had also committed unnatural/sodomy upon her inside the chamber. When after sometime, accused/doctor came inside the chamber, PW5 and her sister Dolma went inside the chamber and asked him as to why he has committed these things, upon which the accused bolted the door of his chamber from inside and apologized by touching the feet of PW5 as prestige of both the family was involved. PW5 with her sister opened the door of the chamber , came outside the chamber and one person advised them to go to the Superintendent of the hospital and on the reception at first floor, they informed the mother of prosecutrix on telephone who also reached there.
29. PW6 Ms. Pasang, the mother of prosecutrix, similarly corroborated the version of PW1 and PW5 saying on receiving information, she reached the hospital, found her both Nanad and prosecutrix daughter there, while the prosectrix PW1 was weeping who narrated to her regarding commission of attempt to rape and unnatural offence/sodomy on her person by the accused and the manner it was committed. PW6 stated that the accused offered SC No. 64/09 25/65 State Vs. Virender Kumar Nigam money to them, whatever they wanted and asked them not to lodge the report and not to disclose it to anyone. PW6 stated that she will lodge the report in the police station.
30. PW7, the 72 years old Brigadier Dr. M. Sarif testified that he was Medical Superintendent in Holy Angels Hospital and was sitting in his office on 23/09/2003 when at about 12.30 pm, hospital supervisor namely Kishan brought two ladies and one minor girl aged about 10 to 12 years regarding some complaint. PW7 stated that he was informed by the lady that Dr. Nigam had misbehaved and done wrong act with her daughter. Upon asking of PW7 to the prosecutrix, she mumbled something which PW7 could not follow. When PW7 asked the lady, then she told PW7 that accused Dr. Nigam had committed wrong act upon her daughter, "Meri Ladki ki ijhat loot li''. PW7 stated that he had called the accused in his office and had asked him to listen to the complaint of the lady and the lady again repeated the entire incident/allegations which the accused refuted saying having not done anything with the girl. Upon insistence of the lady that the accused had done wrong act, PW7 told the lady SC No. 64/09 26/65 State Vs. Virender Kumar Nigam that she should go to the police because such allegations could not be handled by him. Even accused also said that they should go to the police as he has not done anything wrong. In the meantime another woman came there and joined them.
31. PW8 Sh. S.L Raina testified that he was working as Administrative Officer in Holy Angels Hospital and on 23/09/2003 at 10 or 10.30 am two women and one girl had come to their hospital basement, raised hue and cry and he pacified them and taken to the room of PW7. PW8 stated that these people left the hospital at 11 am and they were alleging that doctor was demanding excessive fees and also that doctor had teased the girl. PW8 also stated that on 24/09/2003 at 9 or 9.30 am IO had seized the bed sheet vide memo Ex PW8/A from amongst the pile of the bed sheets.
32. PW20 Sh Pema Namgyal Accountant of Tibetan Nehru Memorial Foundation School, Clementtown, Dehradun has proved the copy of admission register having entry no. 1167D dated 13/07/95, Ex PW20/A, as per which the date of birth of the prosecutrix was SC No. 64/09 27/65 State Vs. Virender Kumar Nigam 07/11/89. PW20 stated that since the admission pertained to L.K.G, therefore no record of birth certificate was taken while making entry in the register.
33. The prosecution case rests on the statement of the proxecutrix PW1, the attending circumstances borne out from the other evidence on record. The prosecution had to prove, (i) that the accused attempted to commit sexual intercourse upon PW1, a minor girl when she had gone for treatment and (ii) the accused committed carnal intercourse against the order of nature with the prosecutrix, a minor girl, on 23/09/03 at about 12 noon in the OPD of Holy Angels Hospital, Basant Lok, New Delhi.
34. In this regard, the law is no more resintegra that the statement of prosecutrix carries sense of credibility and unless there are compelling circumstances which justify the rejection of her statement, it can be relied upon. Even the corroboration to the statement of the prosecutrix is not insisted by law if it sounds reliable and trustworthy.
SC No. 64/09 28/65
State Vs. Virender Kumar Nigam
35. In the case of State of Punjab Vs Gurmit Singh reported in AIR 1996 Supreme Court 1393, the Hon'ble Supreme Court had posed a very pertinent question, why should the evidence of a girl or a woman who complains of rape or sexual molestation, viewed with doubt, disbelief or suspicion? It was held that "Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature to throw out an otherwise reliable prosecution case. If evidence of a prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to SC No. 64/09 29/65 State Vs. Virender Kumar Nigam place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration, required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations".
36. In Ranjit Hazarika vs. State of Assam, (1998) 8 SCC 635, it was held that "The Court must, while evaluating evidence, remain alive to the fact that in case of rape, no selfrespecting woman would come forward in a Court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In case involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or SC No. 64/09 30/65 State Vs. Virender Kumar Nigam sexual molestation, be viewed with doubt, disbelief or suspicion? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding.
37. In 1980 CRI. L.J. 1344, "Rafiq v. State of U.P, (SC)"
Hon'ble Mr. Justice Krishna Iyer held that "Corroboration as condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. Indeed from place to place, from age to age, from varying life styles and behavioral complexes, inferences from a given set of facts, oral or circumstantial, may have to be drawn not with dead uniformity but realistic diversity lest rigidity in the shape of rule of law in this area be introduced through a new type of precedential tyranny. The same observation holds good regarding presence or absence of injuries on the person of the aggressor or the aggressed."
SC No. 64/09 31/65
State Vs. Virender Kumar Nigam
38. Keeping these propositions of law in mind, the evidence on record is to be appreciated.
39. It is proved on record by exhibits PW8/B to PW8/M that the prosecutrix PW1 had visited Holy Angels Hospital on 19/09/2003, 22/09/2003 and 23/09/2003 in the OPD for treatment for boils from the accused who was working as physician doctor there. Even accused has admitted of having given treatment to the prosecutrix. It is also admitted fact that on 23/09/2003 before noon the prosecutrix came in the OPD situated at the basement of Holy Angels Hospital, Basant Lok, Vasant Vihar, New Delhi. It is also admitted fact on record that the prosecutrix with her two maternal aunts went inside the doctor's room given Sl. No. 8 in the aforesaid OPD of Holy Angels Hospital.
40. On one side the prosecutrix testifies in court of the accused/doctor having asked her to lay down on the patient's bed viz. the couch in aforesaid doctor's room no. 8, pursuant to which accused/doctor removed her worn pants and the underwear, attempted SC No. 64/09 32/65 State Vs. Virender Kumar Nigam to commit rape, had unnatural sex with her, kissed her and pressed her breast. Per contra, defence version is that the prosecutrix with her aunts reported to accused, DW1, in his chamber on 23/09/2003, however, he had examined her in casualty also and adviced of the treatment vide prescription Ex PW8/C in respect of the ailment of the patient pursuant to which the prosectrix left his chamber alongwith the aunts but later came to OPD, started shouting, making allegations of molestation of the prosecutrix against him.
41. A minor girl of age 14/15 years, the prosecutrix, student of class 9th of Tibetan Nehru Memorial Foundation School, situated at Dehradun had come to this capital city of India for treatment of boils developed on her ankle and elbow since her parents, aunts were residing in Delhi who could take care of her. PW1, as patient visited the Holy Angels Hospital for getting treatment of her aforesaid disease. PW1 was taken to hospital by her aunts for treatment. The aunts of the prosecutrix were admittedly patients of accused for last several years prior to the alleged occurrence. On clinical examination of the prosecutrix, accused/doctor found that she was SC No. 64/09 33/65 State Vs. Virender Kumar Nigam having bone tuberculosis. Even prior to 23/09/2003, the wound on the elbow of prosecutrix was bandaged. The father of the prosecutrix was stated to be a cook and her mother stated to be privately employed. True, that the prosecutrix belonged to a lower middle class family. Yet, on record, there is no material proved or to even infer of the prosecutrix or even any of her relatives nursing any animus against the accused or for them there being in existence any cause for levelling false accusations against accused or to falsely implicate him, even for the purposes of extortion while it was the accused doctor, who had been treating the aunts of PW1 prosecutrix for last several years.
42. True, that the medical examination of the prosecutrix revealed no marks of violence, indicative of struggle or resistance as are in cases of sodomy or rape/ attempt of rape. Also admitedly neither the prosecutrix did shout, cry, bite etc. to prevent the commission of the offences nor did she lost her consciousness. Also, the hymen of the prosecutrix was found intact, was not found red, congested alongwith inflammation and bruising of the labia. No marks SC No. 64/09 34/65 State Vs. Virender Kumar Nigam were found on any body part of the prosectrix nor did she face any difficulty in walking pursuant to the alleged act. To constitute the offence of rape, it is not necessary that there should be complete penetration of the penis with the emission of semen and rupture of hymen. Even partial penetration within the labia majora of the vulva or pudendum, with or without emission of semen is sufficient to constitute rape while hymen even may remain intact and not rupture.
43. False charges of rape/sodomy are not uncommon in India. In such cases, the accusations are laid, also when own relative of such victims may inflict injuries on the private parts of the victims. Had the intent been of extortion, the prosecutrix, her relatives would have taken all care to make it a fool proof case and even self inflicted injuries was also a possible way to make it so.
44. Patients of past several years i.e the aunts of the prosecutrix viz. PW5 and her sister Ms. Dolma brought prosecutrix for treatment to the doctor/accused under the faith and belief that SC No. 64/09 35/65 State Vs. Virender Kumar Nigam their niece, prosecutrix, would be cured by the serving hands of the accused/doctor who had previously treated them for past several years.
45. It is also true that the testimonies of the material prosecution witnesses embody several discrepancies. Such discrepancies begin when the prosecutrix, PW1 did not depose in court that before she was asked to lay down on the patient's bed by the accused, accused doctor had asked her to pull of her pants to enable her to check her wound on her ankle because of which she felt shy and refused to lift her pants, as was told by her in her previous statement Ex PW1/A to the police. PW1 also admitted that she did not raise any alarm, though the hall, outside the doctor's room, was crowded with patients, their attendants, nurses and doctors etc. On this count, the prosecutrix explains, she did not raise any alarm because she was nervous and the accused/doctor had gagged her mouth, though she tried to put resistance but since her arms were paining, she could not put any resistance. PW1 categorically stated that in the course of occurrence, accused/doctor had also pressed her SC No. 64/09 36/65 State Vs. Virender Kumar Nigam arm and the place which was injured for which she felt pain, though she had not screamed. PW1 further clarified that accused/doctor had gagged her mouth with one hand saying the accused had not gagged her mouth immediately but only when she tried to get up and put resistance and shout, the accused gagged her mouth. Later when the accused asked the prosecutrix to stand up, he removed his hand from the mouth of prosecutrix. It had been argued that by putting a hand on the mouth of the patient lying on a couch/patient's bed, it was impossible for any accused/doctor to commit any offence of attempt to rape or to have unnatural sex against the will of the victim, while standing, while the hands and legs of the victim were free. Also, PW1 had initially stated in her examination in chief that the accused had inter alia penetrated his penis from her front side. Qua such fact in the course of her cross examination, PW1 elaborated that she so said under misconception as she could not describe the incident properly and she stated that accused himself did not penetrate into her vagina, though the accused tried to penetrate from front side but had not actually penetrated.
SC No. 64/09 37/65
State Vs. Virender Kumar Nigam
46. The medical examination of PW1 conducted by PW3 reveals no evidence of scratch mark, violence, no excoriation seen externally on vulva or anus, no evidence of local injury on breast. There was no sign of struggle on any body part of prosecutrix. To PW3, PW1 never complained of alleged history of sodomy as she complained to PW 21 in her statement Ex PW1/A.
47. A minor girl, 14/15 years of age, student of 9th class, studying several hundred kilometers away, had come to Delhi for treatment of her ailment of boils but finds her in state of shock and trauma pursuant to alleged sexual assault by the examining doctor who was expected to treat and cure her. Should the court expect such a minor girl to be meticulous and depose as if a video tape is played on the mental screen?
48. In Bachittar Singh and another v. State of Punjab, AIR 2002 SC 3473, on human behaviour, it was held that "Human behaviour vary from man to man. Different people behave and react differently in different situations. Human behaviour depends upon the facts and circumstances of each SC No. 64/09 38/65 State Vs. Virender Kumar Nigam given case. How a man would behave in a particular situation, can never be predicted.''
49. In 2008 CRI.L.J. 3061, "Dalbir Singh v. State of Haryana, Hon'ble Supreme Court held that the maxim "falsus in uno falsus in omnibus" (false in one thing, false in everything) has not received general acceptance in different jurisdiction in India nor has this maxim come to occupy the status of rule of law. The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, it is to be feared that administration of criminal justice would come to a deadstop. The witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient to place reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be sifted with care. The aforesaid dictim is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate SC No. 64/09 39/65 State Vs. Virender Kumar Nigam exaggeration, embroideries or embellishment.
50. When prosecutrix with her relatives went to PW7, Medical Superintendent at around 12.30 pm, she was asked by her relative lady to tell her ordeal. PW1 mumbled something which PW7 could not follow. PW7 was then told by the said lady about the ordeal of PW1. PW1 explained the reason for not raising hue and cry on being assaulted as she was nervous and when she tried to rise and put resistance and shout, accused gagged her mouth. Nonraising of hue and cry by prosecutrix at the time of assault on her body cannot be made the basis of discarding her testimony in toto in the present set of facts and circumstances.
51. The discrepancies in evidence of prosecutrix elicited by Ld. Defence Counsel and above said, apparently are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror and giving of the said imaginary details on the spur of the moment, perhaps over awed by the encountered sexual assault, trauma and later by the Court SC No. 64/09 40/65 State Vs. Virender Kumar Nigam atmosphere and the piercing questions in examination and cross examination.
52. The prosecutrix, PW1 was vivid in respect of certain facts including having been asked by the accused and having laid on the patient's bed viz. couch; accused having removed her worn pants and the underwear; accused having opened up the zip of his pants; accused having tried to penetrate her vagina; accused having sometimes asked her to turn towards left, sometimes towards right and sometimes PW1 was lying on her back, changing position on the bed, as per directions of the accused/doctor; accused having gagged the mouth of the prosecutrix when she tried to rise and put resistance.
53. The prosecutrix, PW1, admitted that during the occurrence the accused never asked her to be in a crawling position. In the back drop of present set of facts and circumstances, including the out come of the medical examination of the prosecutrix, height of the couch being 33 inches and the height of the pubic symphysis of SC No. 64/09 41/65 State Vs. Virender Kumar Nigam accused being 28 inches, even if the steps laid beside the couch, each one having height approximately one feet, are used then also it so appears that with all probability, the act of sodomy cannot be completed by accused doctor in a standing position when the victim is lying on the couch even by turning her, as has been so alleged. Even PW3 mentioned in Ex PW3/A, no excoriation seen externally on vulva or anus. To that extent also, per se, there appears magnification and exaggeration of the act of accused.
54. In the case of State of Rajasthan Vs. N.K, 2000 CRI.L.J 2205, it was held that the absence of visible marks of injuries on the person of the prosecutrix on the date of her medical examination would not necessarily mean that she had not suffered any injuries or that she had offered no resistance at the time of commission of the crime. Absence of injuries on the person of the prosecutrix is not necessarily an evidence of falsity of the allegation or an evidence of consent on the part of the prosecutrix. It will all depend on the facts and circumstances of each case. In Seikh Zakir, 1983 Crl. L.J 1285:(AIR 1983 SC 911) absence of any injury on the person of SC No. 64/09 42/65 State Vs. Virender Kumar Nigam prosecutrix, who was helpless victim of rape, belonging to backward community living in a remote area, not knowing the need of rushing to a doctor after the occurrence of the incident, was held not enough for discrediting the statement of the prosecutrix if the other evidence was believable.
55. In Balwant Singh vs. State of Punjab, 1987 CRL.L.J 971:(AIR 1987 SC 1080) it was held that "Every resistance need not necessarity be accompanied by some injury on the body of the victim, the prosecutrix being a girl of 19/20 years of age was not in the facts and circumstances of the case expected to offer such resistence as would cause injuries to her body.
56. In Karnel Singh vs. State of M.P. (1995) 5 SCC 518; (1995 AIR SCW 3644: AIR 1995 SC 2472) the prosecutrix was made to lie down on pile of sand. It was held that "Absence of marks of external injuries on the part of the prosecutrix cannot be adopted as a formula for inferring consent on the part of the prosecutrix and holding that she was a willing party to the act of sexual intercourse. It will all depend on the facts and circumstances of each case. The prosecutrix on account to age of infirmity or overpowered by fear or force may have been incapable of SC No. 64/09 43/65 State Vs. Virender Kumar Nigam offering any resistance."
57. Accordingly, presence of visible marks of injuries on the person of prosecutrix on the date of her medical examination is not a sine qua non to presume truthfulness of the allegation of rape or sodomy.
58. The conduct of the accused, surrounding circumstances, the evidence on record will further throw beacon light on the alleged indecent assault. Immediately on coming out of the room of doctor, the prosecutrix PW1 narrated her ordeal to her aunts PW5 and Mrs. Dolma in few minutes who then had confronted the accused. No attendant or nurse was present inside the room of doctor at the time of examination of the prosecutrix by the doctor, though the support staff was stated to be present alongwith others in the waiting hall outside the said room. Even the accused has not claimed of the presence of any support staff in his doctor room in OPD when PW1 with her aunts came to him. PW6, mother of prosecutrix PW1, on arrival at hospital had found her daughter weeping. PW1 even narrated her ordeal to PW6. Even PW8 deposed that the two women and girl SC No. 64/09 44/65 State Vs. Virender Kumar Nigam were alleging that doctor had teased the girl, though when PW8 resiled from his previous statement, he was cross examined by Ld. Addl. PP for the State but he has not cross examined by defence counsel despite grant of opportunity.
59. PW7, the Medical Superintendent of the hospital had deposed that the lady accompanying PW1 informed him that accused had misbehaved with PW1 and had done wrong act with her, which was described as ' Meri Ladki Ki ijjat Loot Li'. Having heard the denial of accused of commission of any such act, PW7 merely told the prosecutrix and her relatives to go to the police but he did not inform the police nor called the police there. PW7 even did not conduct any preliminary or discreet inquiry qua leveled allegations. Was it not the duty of the Medical Superintendent of the hospital to report the matter of alleged commission of such offences by a doctor of hospital to police? That was required of him, not only it being his duty, but also to enable prompt investigation on scientific lines at earliest possible opportunity.
SC No. 64/09 45/65
State Vs. Virender Kumar Nigam
60. PW8 is the witness of seizure of bed sheet Ex P2 vide memo Ex PW8/A. Ex PW8/A bears the date 23/09/2003. PW8 says date 23/09/2003 on Ex PW8/A was written subsequently. PW8 stated that he did not know if the bed sheet, Ex P2, taken by police was of 8 number cabin. PW8 stated IO took away the bed sheet on 24/09/2003 at about 9 or 9.30 am. Accused and his spouse, both were the doctors in the hospital in question. It was not difficult for the accused to have won over PW8.
61. PW21 IO deposed that after getting case registered on 23/09/2003, she took prosecutrix, PW1, to Holy Angels Hospital where she had also called accused from his residence which fact is also deposed by accused as DW1. PW21/IO after preparing rough site plan Ex PW21/B had seized bed sheet, Ex P2, from room no. 8 of OPD of Holy Angels Hospital on 23/09/2003. I believe PW21/IO regarding seizure of aforesaid bed sheet, Ex P2, accordingly.
62. On bed sheet, Ex P2, semen stains of 'O' Group were detected as per FSL Report Ex PW4/B. Blood of accused was also SC No. 64/09 46/65 State Vs. Virender Kumar Nigam of 'O' Group as per said report Ex PW4/B. As per Ex PW4/A, human semen was detected on underwear, Ex P1, of the prosecutrix but its group could not be detected as per Ex PW4/B.
63. In his examination under Section 313 Cr.P.C, accused stated that on 23/09/2003, he was in the OPD of the hospital alongwith his wife doctor; the wife of the accused had a delivery case and she was there all the time in the OPD and subsequently her patient delivered at around 4 pm on the same day. The accused moved application dated 26/02/2007 citing nine defence witnesses, inter alia amongst them his wife as witness no. 1 with the mention that on the alleged date of incident she was present there and would give the evidence regarding the circumstances before and after the alleged incident. As a matter of fact, the accused did not examine his wife as a defence witness. In the aforesaid list of defence witnesses, accused had also cited two other doctors, Dr. Rajender Prasad, Dr. I.S Mehta; Cap. Dilawar Singh Sangwan, who is stated to have brought his father for examination; Mrs Santosh, Receptionist of hospital, all of whom were alleged by accused to have been SC No. 64/09 47/65 State Vs. Virender Kumar Nigam present at the time of occurrence, in the hospital. None amongst them was examined as a defence witness. Even accused as DW1 had alleged that qua demand of money made by a lady Neetu Soni at PS in night of 23/09/2003, his colleagues had a talk with said lady at police station. No such colleague of accused has been examined in defence evidence to depose such fact or to corroborate the such defence version. Accused alleges to have been falsely implicated at the instance of Dr. Rajat Mitra to whom he had refused for getting aborted a pregnant girl accompanying him in May, 2003. Accused admitted having not lodged any complaint against said Dr Rajat Mitra or his wife Mrs. Nidhi Mitra. Accused alleged that he had seen said Dr. Rajat Mitra with his wife Mrs. Nidhi Mitra at police station where he had been detained in the night of 23/09/2003. As per accused, his colleagues had come to police station on said night. None amongst them have been examined to depose the fact of presence of said Dr Rajat Mitra or his wife Mrs. Nidhi Mitra there in the night of 23/09/2003.
64. There is no cogent evidence on record to prove said SC No. 64/09 48/65 State Vs. Virender Kumar Nigam defence of false implication of accused at instance of Dr. Rajat Mitra and/or his wife Mrs. Nidhi Mitra.
65. As per own admission of accused, he was with police officials since late evening of 23/09/2003 when he was called at hospital from his residence. From the hospital accused accompanied police officials to police station. On the next day, i.e, 24/09/2003 accused was got examined at Safdarjung Hospital in afternoon. It is not the case of accused as DW1 that in the period between late evening of 23/09/2003 till the afternoon time of 24/09/2003, when accused was medically examined at Safdarjung Hospital, the accused had a bath. As per MLC Ex PW14/A and PW14, on local examination of accused, smegma was found absent, there was nothing to suggest that accused was incapable in performing sexual intercourse; sexual intercourse in past 36 hours could not be ruled out.
66. Accused was a practicing and experienced doctor on day of alleged commission of crime. Accused was in the knowledge SC No. 64/09 49/65 State Vs. Virender Kumar Nigam of accusations against him made by the prosecutrix, PW1 and her relatives before the Medical Superintendent, PW7, around noon time on 23/09/2003. Since late evening of 23/09/2003 the accused was alongwith police officials till his medical examination by PW14 at 1.40 pm on 24/09/2003. It can be presumed that being a prudent doctor, the accused was knowing the sanctity of existence of smegma around the corona glandis, as a proof against sexual intercourse, since it is rubbed off during the sexual act. As aforesaid, yet when medically examined by PW14, smegma around the corona glandis of accused was found absent. This circumstance goes against the accused accordingly.
67. The precedents relied by the ld. defence counsel embody facts and circumstances entirely different and distinguishable to the present set of facts, circumstances, attending circumstances, conduct of the accused. So they are of no help to accused to secure acquittal.
SC No. 64/09 50/65
State Vs. Virender Kumar Nigam
68. In the case of Abdul Salam (Supra), the two cited eye witnesses resiled on examination and stated having seen nothing at all. The minor victim boy was of tender age of 11 years, examining doctor PW4 opined that in view of such tender age of victim, injury in anus was likely. In the case at hand, as per given prescription of accused, Ex PW8/C, PW1 was of weight 45 Kg. As per school record the prosecutrix was of around 14 years and as per Oscification test her age was not less than 15 years. Considering the age and weight of prosecutrix, presence of injuries on vagina or anus are not sine qua non for proving of present case.
69. In the case of Sadashiv Ramrao Hadbe (Supra), while the victim was able bodied person of 20 years of age; smegma was proved to be present around the corona glandis of accused, for collection of which a period of 24 hours is required. Facts of present case are at variance.
70. In the case of Aman Kumar (Supra), the father of SC No. 64/09 51/65 State Vs. Virender Kumar Nigam prosecutrix had deposed that his wife told him that the prosecutrix was teased by accused, there was no material to show that accused were determined to have sexual intercourse in all events.
71. In the case of Dilip (Supra), the solitary evidence of prosecutrix was found difficult to accept as being contradicted by statement of her own aunt and medical evidence since she stated to have bleeded from private parts staining her body and clothes worn while there the presence of blood stains was not confirmed by examining doctor and forensic expert. Version of prosecutrix was also belied by the versions of her own aunt.
72. In the case of Tarkeshwar Sahu (Supra), the accused had neither undressed himself nor even asked the prosecutrix to undress, so there was no question of penetration or attempt to penetrate.
73. In the case of Kuldeep (Supra), the conduct of the prosecutrix showed she being consenting party. In the case at hand PW1 was not a consenting party while she claimed to be of 13 SC No. 64/09 52/65 State Vs. Virender Kumar Nigam years of age. As per her school record, she was of about 14 years of age. As per Oscification test, PW1 was in between 15 years and 18 years of age. Her age here is accordingly taken as less than 16 years.
74. In the case of Lalliram (Supra), offence complained was of gang rape and no injury was noticed on the person of prosecutrix.
75. In the case of Ramji Lal (Supra), accused had tried to fondle vagina of three and half years old girl with his fingers.
76. In the case of Jai Chand (Supra), accused had made no attempt to undress himself.
77. In the case of Salim (Supra), prosecutrix was alleged to be raped near water tap, in public place in public view and so her version was considered improbable.
78. In the case of Rajoo (Supra), identification of accused SC No. 64/09 53/65 State Vs. Virender Kumar Nigam was doubtful.
79. In the case of Tameezuddin (Supra), story of prosecution was termed improbable belying logic as prosecutrix narrated entire story to her husband, but they still managed to lure the accused to police station saying everything was forgiven and forgotten, while the few persons admittedly present at scene of crime were not examined.
80. In the case of Gowrishankara Swamigalu (Supra), alleged act of sodomy committed by accused Swamiji at 8 O'clock in morning for a continuous period of seven days inside the school premises was considered against natural human conduct and also there was considerable delay in registration of FIR.
81. Upon sifting the evidence with care, cumulative effect of above discussions, is that the prosecution has been able to prove beyond reasonable doubt from evidence and material on record that over powered by lust, putting at bay all consequences, accused SC No. 64/09 54/65 State Vs. Virender Kumar Nigam removed worn pants and underwear of lying prosecutrix, opened zip of his pant, while standing with and without aid of the available steps near the patient's bed/couch, had desired to gratify his passions upon person of PW1, intending to do so at all events and notwithstanding any resistance on her part, when she tried to rise and shout, gagged her by one hand, had attempted to penetrate her vagina, also attempted to have unnatural sex with her by trying to put his penis in her anus and even had put his penis in the mouth of PW1, pressed her breast, kissed her. For that even the accused made PW1 change positions while lying on patient's bed under garb of her medical examination for treatment of boils, by sometimes turning towards left, sometimes turning towards right and sometimes PW1 was lying on her back. Just because the position of PW1 on patient's bed/ couch was such that while standing, the accused despite attempts could not put his virile member within the labia of the pudendum of PW1 or even in the anus. Still to the extent of attempt to rape and attempt to carnal intercourse against the order of nature with prosecutrix PW1, the evidence of prosecution is worthy of acceptance and merely because of some minor discrepancies, SC No. 64/09 55/65 State Vs. Virender Kumar Nigam contradictions, it does not follow as a matter of law that the evidence of prosecution, including PW1 is to be disregarded in toto. Accused is held guilty and convicted for offences punishable under Sections 376 IPC read with Section 511 IPC and 377 IPC read with Section 511 IPC. Let he be heard on sentence.
Announced in the open court (GURVINDER PAL SINGH)
on dated 28.01.2011 ASJ (FTC)/SD/ NEW DELHI.
SC No. 64/09 56/65
State Vs. Virender Kumar Nigam
IN THE COURT OF SHRI GURVINDER PAL SINGH
ADDL. SESSIONS JUDGE(FTC), SOUTH DISTRICT
SAKET COURTS, NEW DELHI
Session Case No. 64/09
ID No: 02403R0423902004
State Vs. : Virender Kumar Nigam
S/o Sh. G.P Nigam
R/o D1/1426, Vasant Kunj,
New Delhi
FIR No. 284/2003
P.S. Vasant Vihar
U/s 376/511/377 IPC
ORDER ON SENTENCE:
Pursuant to judgment dated 28.01.2011 passed by this Court convicting the accused namely Mr.Virender Kumar Nigam for offence of attempt to rape and attempt to have carnal intercourse against the order of nature with his minor patient, prosecutrix, I have heard the Additional Public Prosecutor for the State and the Ld.Counsel for the convict as well as the convict on the point of quantum of sentence to be awarded to the convict SC No. 64/09 57/65 State Vs. Virender Kumar Nigam and also perused the case record.
2. This case is a glaring example of the growing menace of sexual abuse of young children. Rape is an abominable and ghastly act and it worsens and becomes inhuman and barbaric when the victim is a minor female, own patient of convict doctor, as in the present case who is subjected to unwanted physical contact by a perverted male adult.
3. The psychological harm on the victim is massive as it evokes doubts, raises questions for which answers are not easy to get. The victim may suppress emotions or be filled with feelings of rage, guilt and shame. It is difficult for such victims to trust others later on in life. The victim needs to stand up for himself/herself and not allow the trauma to make them psychologically and socially weak. Active social support from family, friends, guidance centres and counselors can bring the victim's faith in the goodness of human beings back. The victim lacks selfconfidence and is always under a sense of guilt and denial. It's not about the body. It's more about the mind. Child sexual abuse is a rape of the mind and thought processes.
4. The Additional Public Prosecutor for the State has requested SC No. 64/09 58/65 State Vs. Virender Kumar Nigam for the maximum sentence to be imposed upon the convict submitting that he does not deserve any leniency keeping in view the offences committed by him. Ld. Addl. PP further argued that if a person of such age, status tries to commit rape/sodomy on a minor girl patient, it shows his perverted mind and sentence must be deterrent since the convict was found pacifying his lust on a patient who was compelled to surrender. The aggravating aspect rules out the scope of leniency.
5. The convict and his Ld.Counsel, on the other hand, have requested for a lenient view to be taken against him. Ld. Defence Counsel argued that at present the convict was 60 years of age, a medical professional, MBBS, M.D having own practice, also attached to Holy Angel Hospital as Honorary Senior Consultant Physician since 1989 till date. Also was argued that this is the first conviction of convict who is having otherwise clean antecedents, having no criminal tendency, a person with good character, having fixed place of abode and he is living permanently in Delhi for 20 years, highly respectable member of society, has to shoulder the responsibility and take care of his two unmarried daughters of age 27 years and 25 years respectively and aged sister, who is physically challenged and totally dependent upon the convict for all her needs. Also was submitted that the wife of convict is also a medical SC No. 64/09 59/65 State Vs. Virender Kumar Nigam professional but not attached to any hospital presently nor able to do private practice of her own due to social sigma and poor health.
Ld. Counsel for convict has also relied upon the following judgments:
1. Chitranjan Dass vs. State of UP, 1975 Cri.L.J 30
2. Fazal Rab Choudhary vs. State of Bihar, 1983 Cri.L.J 632
3. Kishor vs. State of Maharashtra, 1995 Cri.L.J 1765
4. State of Madhya Pradesh vs. Udhe Lal, 1996 Cri.L.J 3202
5. Fagnu Bhoi vs State of Orissa, 1992 Cri.L.J 1808
6. Bharwada Bhoginbhai Hirjibhai vs State of Gujarat, 1983 Cri.L.J 1096.
6. Careful perusal of the precedents relied upon by the ld. Defence Counsel reveal then to be embodying facts entirely different and distinguishable to the facts and circumstances of the present case. 6(i) In the case of Chitranjan Dass (supra), the convict was highly educated and cultured person suffering from mental aberration when he committed the offence of sodomy.
6(ii) In the case of Fazal Rab Choudhary (supra), the offence committed by the convict was an unnatural offence upon a young boy, SC No. 64/09 60/65 State Vs. Virender Kumar Nigam under Section 377 IPC.
6(iii) In the case of Kishor (supra), when the prosecutrix was alone and was carrying tiffin for her husband to the field at about 10 to 11 am, then near the bank of the tank on the way to the field, the convict had attempted to commit rape.
6(iv) In the case of Udhe Lal (supra), the convict had committed the offence of attempt to commit rape with a minor girl of age 810 years when she was alone in her house.
6(v) In the case of Fagnu Bhoi (supra), the convicts were in their early twenties and were daily wage earners when they had attempted rape. 6(vi) In the case of Bharwada Bhoginbhai Hirjibhai (supra), the convict, a government servant, in Sachivalaya, had lost his job in view of the conviction for sexual misbehavior, offence of rape and outraging modesty of women.
Herein the convict was a qualified, experienced doctor, of age about 53 years, who while treating a minor patient in the hospital had kept at bay all canons of law, ethics of medical practice, his social background and upbringing and ventured on the forbidden path to launch sexual assault on a vulnerable and easy prey, the minor prosecutrix, his patient.
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State Vs. Virender Kumar Nigam
7. Whether the case is one of those cases which require the maximum sentence to be imposed is a question which has to be determined on the facts of each case. Where the culpability of the convict has assumed depravity or where the accused is found to be an ardent criminal and menace to be society and where the crime is committed in an organized manner and is gruesome, coldblooded, heinous and atrocious; where innocent and unarmed persons are attacked without any provocation, requires the sternest of views to be taken while awarding the sentence.
8. In the case of "State of AP vs. Bodem Sundara Rao", AIR 1996 SC 530, it was observed by the Hon'ble Supreme Court that "In recent years, it is noticed that crime against women are on the rise. These crimes are an affront to the human dignity of the society. Imposition of grossly inadequate sentence and particularly against the mandate of the Legislature not only is an injustice to the victim of the crime in particular and the society as a whole in general, but also at times encourages a criminal. The courts have an obligation while awarding punishment to impose appropriate punishment so as to respond to the society's cry for justice against such criminals".
9. Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the SC No. 64/09 62/65 State Vs. Virender Kumar Nigam efficacy of law and society could not long endure under such serious threats.
10. Child sexual abuse, incest, murder of children or attempt to murder children are dark realities in Indian society like in any other nation.Where the offender, the perpetrator of the abuse on his minor patient is the treating doctor, he should not only be arrested but also punished sternly for the offence of rape.
11. Considering the aforesaid submissions from both the sides, the family circumstances of the convict and perusing the case record, I consider it proper to award a substantive sentence upon the convict. Keeping in view the offence committed by the convict doctor, I am not inclined to take a lenient view against him . He has raped his own minor female patient who was vulnerable and an easy prey when was brought by own aunts, the old patients of convict doctor, under the faith and belief that the convict would cure her but he instead defiled her giving her a lifelong trauma. It being an act of a perverted man, he should not escape with a minor punishment.
12. Keeping in view the ghastly and inhuman act of the convict, a SC No. 64/09 63/65 State Vs. Virender Kumar Nigam substantive and stern sentence is required to be imposed upon the convict so that it is not only in commensuration with the gravity of the crime but also serves as an example for the others who might also venture on the same forbidden path. The convict does not deserve any leniency.
13. Therefore, considering these aggravating and mitigating facts, I hereby sentence the convict
(i) to undergo rigorous imprisonment for a period of five years and a fine in the sum of Rs. 15,000/ in default of payment of which, he shall undergo rigorous imprisonment for a period of one year, for the offence under Section 376 IPC read with Section 511 IPC.
(ii) to undergo rigorous imprisonment for a period of five years and a fine in the sum of Rs. 15,000/ in default of payment of which, he shall undergo rigorous imprisonment for a period of one year, for the offence under Section 377 IPC read with Section 511 IPC.
The sentences in default of payment of fine shall run consecutively to the other sentences of imprisonment for both offences.
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State Vs. Virender Kumar Nigam
14. The convict was arrested on 24/09/2003 and remained in judicial custody upto 16/10/2003 when he was enlarged on bail. The period of custody already under gone by him be set off against the sentence awarded to the convict, granting him the benefit of section 428 of the Criminal Procedure Code.
15. The entire amount of fine, if realized, is awarded to the prosecutrix as compensation for the benefit of the prosecutrix .
Committal warrant be prepared. Copy of the judgment and order order on sentence be supplied to convict free of cost immediately.
File be consigned to the record room.
Announced in the open court (GURVINDER PAL SINGH) on dated 29.01.2011 ASJ (FTC)/SD/NEW DELHII.. SC No. 64/09 65/65