Delhi District Court
State vs Ashok Kumar Wadhwa on 16 December, 2019
IN THE COURT OF SHRI UMED SINGH GREWAL
ADDITIONAL SESSIONS JUDGE: SPECIAL FAST
TRACK COURT (NORTH): ROHINI: DELHI
Sessions Case No: 458/17
State
Versus
Ashok Kumar Wadhawa
S/o. Sh. R.P. Wadhawa
R/o 1A, 604, Rang Rasayan Apartment
Sector13, Rohini, Delhi.
FIR No. : 223/16
Police Station : Prashant Vihar
Under Section : 328/376 IPC
Date of Committal to Sessions Court: 02.08.2017
Date on which Judgment reserved : 11.12.2019
Date on which Judgment announced: 16.12.2019
Present: Shri V.K. Negi, ld. Additional PP for State.
Sh. M.S. Khan, ld. counsel for accused.
JUDGMENT
1. The accused has been forwarded to face trial for raping his maid.
State Vs Ashok Kumar Wadhwa S.C. NO. 458/17 // FIR No. 223/16 // PS Prashant Vihar Pages 1 of 11
2. The victim hails from Jharkhand and she was brought to Delhi on the promise of employment at a salary of Rs. 10,000 - 15,000/ per month. In February 2015, a placement agency owner got her employed as maid in the house of accused situated in Rang Rasayan Apartment, Sector13, Rohini, Delhi. The accused gave her milk after 45 months of employment after consuming of which, she became unconscious and when she woke up in the morning, she found her clothes removed and the accused had raped her by that time. Thereafter, she was raped several times. In October 2015, the accused was to visit a country and so, he dropped her in the premises of employer Kamal Sahu where she came to know that she was pregnant. She did not tell anybody about her pregnancy. On 20.02.2016, she came across a girl, resident of Ranchi who gave intimation of the incident on 100 number.
She gave birth to a baby girl in DDU Hospital on 30.04.2016.
3. Charge under section 328/376 IPC was framed against the accused on 17.01.2018 to which he pleaded not guilty and claimed trial.
4. In order to prove the case, the prosecution examined five witnesses.
5. As PW1, the prosecutrix deposed that she had worked in the house of accused. She was served milk by some persons whose State Vs Ashok Kumar Wadhwa S.C. NO. 458/17 // FIR No. 223/16 // PS Prashant Vihar Pages 2 of 11 name she did not know. After consuming milk, she became unconscious. She further deposed that she did not know anything else. Simultaneously, she deposed that somebody had raped her but she did not know about that offender as she was unconscious. She next deposed that when the family of the accused was going abroad, he dropped her in the office of placement agency. She asked owner Sanjay to send her to her native place but he did not allow her. He did not pay her outstanding salary for three years and two months. She next deposed that a lady met her in the hospital who took her to the police station where her signatures were taken. She was later produced before Ld. MM where she made statement as per the dictation of the lady, who had met her in the hospital. She was declared hostile and in cross examination by ld. additional PP, she deposed that she had not tell IO that the accused offered her a glass of milk after consuming of which she became unconscious and found herself naked in the morning. She denied to have been raped by the accused.
PW2 Kamal Sahu is running a placement agency in the name and style of Jan Sewa in Punjabi Bagh. He knew accused very well as he had placed several household workers in his house. He deposed that he got employed victim in the house of the accused as domestic helper on 22.02.2015 where she worked for eight months. The accused dropped her in his office as his family members had to State Vs Ashok Kumar Wadhwa S.C. NO. 458/17 // FIR No. 223/16 // PS Prashant Vihar Pages 3 of 11 go abroad. He took her to the house of Sanjay and handed over her custody to him who later told him on phone that the lady was pregnant.
PW4 Shabnam Khatoon @ Neetu could not recollect the date and month but deposed that it was summer of 2016 when she had come to Punjabi Bagh to meet her relative. When she reached near Lal Quarter, Punjabi Bagh, she noticed victim and on enquiry, she told that one Ashok Wadhwa had raped her. On further enquiry, she told that she was residing with Kamal, but she would not go there again and hence, she took her to her own house. She next deposed that she alongwith victim came to Rang Rasayan Apartment, Rohini where the prosecutrix gave information of incident on 100 number using her (PW4) mobile phone.
PW3 Bijender Singh Mann, Record Clerk of DDU Hospital brought admission and discharge summary Ex.PW3/A of the victim. As per that record, she was taken to the hospital from Nari Niketan Nirmal Chaya, Jail Road, Hari Nagar pursuant to which a medical board comprising of Sh. V.K. Sharma, Ms. Rita Rajan and Dr. Nishant was constituted which examined the patient and prepared report. The victim was discharged on 03.05.2016. During her four days stay in the hospital, the victim had delivered a baby child. At the time of discharge, the victim was handed over to one Hira Devi who took her to Nari Niketan.
State Vs Ashok Kumar Wadhwa S.C. NO. 458/17 // FIR No. 223/16 // PS Prashant Vihar Pages 4 of 11
6. PW5 SI Rita deposed that on receipt of DD No. 29A Ex.PW5/A on 22.02.2016, she reached Rang Rasayan Apartment, Sector13, Rohini where prosecutrix met her on the main gate of the society and told that she had been raped. So, she called an official namely Nazma Khatoon from NGO Nav Shristi. Victim's statement ExPW1/B was recorded and she was medically examined in BSA hospital. Her UPT was found positive. Thereafter, she made endorsement Ex.PW5/B on the statement and got the case FIR registered. The victim was admitted in the hospital where she was taken care of by Lady Ct. Kailashi. She next deposed that she got recorded statement of the prosecutrix in Rohini Court on 08.03.2016. Thereafter, she was admitted in Nirmal Chaya. She next deposed that the prosecutrix gave birth to a female child in DDU Hospital on 30.04.2016. The doctor gave her blood sample of the infant in sealed condition on 03.05.2016 which she seized vide seizure memo Ex.PW5/F. The accused joined investigation on 04.05.2016 and his potency test was got conducted in BSA Hospital pursuant to which the doctor handed over her blood sample in sealed condition which she seized vide seizure memo Ex.PW5/G. She next deposed that the samples were deposited in FSL on 09.05.2016 through Ct. Rakesh. She filed the chargesheet after receipt of FSL result.
7. On 29.08.2018, accused admitted following documents/ statements / proceedings U/s 294 Cr.P.C.: State Vs Ashok Kumar Wadhwa S.C. NO. 458/17 // FIR No. 223/16 // PS Prashant Vihar Pages 5 of 11 S. Name of the documents Admitted Denied Exhibits No.
1. MLC of victim No. 110/15 Yes - Ex.PX1 prepared by Dr. Sharannya at BSA Hospital
2. Proceedings U/s 164 Cr.P.C. Yes - Ex.PX2 recorded by Ms. Richa Manchanda, Ld. MM
3. FIR recorded by DO HC Yes - Ex.PX3 Lakhpat.
4. MLC of accused no. 38/16 Yes - Ex.PX4 prepared by Dr. Sandeep Garg of BSA Hospital.
5. Statement U/s 161 Cr.P.C. of Yes - Ex.PX5 Ct. Pankaj
6. Statement U/s 161 Cr.P.C. of Yes - Ex.PX6 ASI Subhash MHC(M)
7. Statement U/s 161 Cr.P.C. of Yes - Ex.PX7 Ct. Rakesh
8. Statement U/s 161 Cr.P.C. of Yes - Ex.PX8 Ms. Seema Nain
8. U/s 313 Cr.P.C., the accused admitted that the victim had started working in his house as maid w.e.f. 22.02.2015. He admitted that he and his family members had to go abroad and hence, she was sent back to the placement agency. In last, he stated that the present false case was registered against him at the instance of one Bhanu Pratap who was running an NGO. He further stated that it was he who had volunteered to undergo DNA test after registration of FIR.
9. Not a single witness was examined in defence.
State Vs Ashok Kumar Wadhwa S.C. NO. 458/17 // FIR No. 223/16 // PS Prashant Vihar Pages 6 of 11
10. Ld. defence counsel argued that there is no evidence against his client as the prosecutrix has been declared hostile. As per FSL report, the accused is not the biological father of the baby child of the victim. He further submitted that it has been deposed by PW4 Shabnam Khatoon @ Neetu that the prosecutrix told her that the accused had raped her. But her deposition is hearsay and not admissible in evidence.
Ld. additional PP admitted that the prosecutrix did not depose against the accused. He further admitted that the FSL report is also in favour of the accused. But he heavily relied upon the evidence of Shabnam Khatoon @ Neetu to say that the said witness proves that the victim was raped by the accused.
11. The victim deposed as PW1 that she had worked as maid in the house of the accused. She was given milk by some persons after consuming of which she became unconscious and someone had raped her. She did not tell the name of the person by whom she was given milk. She did not name the person, who had raped her. Regarding complaint to the police, she deposed that a lady met her in the hospital who took her to Police Station Prashant Vihar where her signatures were obtained and thereafter, she was taken to BSA Hospital. She further deposed that the statement given by her before Ld. MM was as per the dictation of the lady who had met her in the hospital.
State Vs Ashok Kumar Wadhwa S.C. NO. 458/17 // FIR No. 223/16 // PS Prashant Vihar Pages 7 of 11 As the victim did not depose that the accused had given her the milk after consuming of which she became unconscious and thereafter, she was raped by him, the prosecution has failed to prove rape charge through her lips.
12. As per FSL report Ex.PX8, DNA profile was performed on the source of blood of accused and blood sample of baby of victim and that the accused is not the biological father of the child. So, the FSL report is also exonerating the accused.
13. PW4 Shabnam Khatoon @ Neetu deposed that in the summer of 2016, when she visited her relative in Punjabi Bagh, she saw victim weeping near Lal Quarter, Punjabi Bagh and on enquiry, she told her that she was raped by the accused.
Above testimony is hearsay and not admissible. This conclusion is supported by following citations: In Sangannagari Narasimulu vs State of Andhra Pradesh 2005(2) ALD Cril. 387, 2005 Cri.L.J. 4168, I(2006) DMC 834, Hon'ble Andra High Court held as under :
13. "...The only source of information for this witness is the alleged information given by the deceased Mangamma. Even if it is assumed that the deceased Mangamma had informed her mother about the alleged harassment, the statement of Mangamma to her mother cannot be taken as gospel truth and the said statement is a very weak piece of evidence as the deponent is not subjected to crossexamination. Further such statement of the deceased made to her mother even if true, is not State Vs Ashok Kumar Wadhwa S.C. NO. 458/17 // FIR No. 223/16 // PS Prashant Vihar Pages 8 of 11 admissible in evidence. Admittedly, the statement is not in relation to the cause of death of the deceased in this case. When the said statement was not regarding the cause of her death, it does not come within the purview of Section 32(1) of the Evidence Act. The evidence of PW3 that her daughter informed her about the harassment becomes hearsay, which is not admissible in evidence. The Apex Court in Inderpaul v. State of M.P.(1st supra) categorically held that unless the statement of a dead person would fall within the purview of Section 32(1) of the Indian Evidence there is no other provision under which the same can be admitted in evidence and that in order to make the statement of a dead person admissible in law (written or verbal) the statement must be as to the cause of her death or as to any of the circumstances of the transactions which resulted in her death. Their Lordships further observed in the cited case that by no stretch of imagination can the statements of the deceased contained in letters, where reference had been made by her regarding her life in the house of her inlaws, and the statements quoted by the witnesses, who had not spoken of anything which they had seen directly, be connected with any circumstance of the transaction which resulted in her death...."
In Gananath Pattnaik Vs. State of Orissa, Appeal (Crl.) No.1 of 1995, decided on 6 February 2002, Hon'ble Supreme Court held as under: "...Another circumstance of cruelty is with respect to taking away of the child from the deceased. To arrive at such a conclusion, the trial court has referred to the statement of PW5, who is the sister State Vs Ashok Kumar Wadhwa S.C. NO. 458/17 // FIR No. 223/16 // PS Prashant Vihar Pages 9 of 11 of the deceased. In her deposition recorded in the court on 4.5.1990 PW5 had stated:
"Whenever I had gone to my sister, all the times she was complaining that she is not well treated by her husband and inlaws for nonfulfillment of balance dowry amount of scooter and twin one."
and added:
"On 3.6.1987 for the last time I had been to the house of the deceased i.e. to her separate residence. Sworna, Snigdha, Sima apa, Baby Apa accompanied me to her house on that day. At that time the deceased complained before us as usual and added to that she said that she is being assaulted by the accused nowadays. She further complained before us that the accused is taking away the child from and her, and that her mother inlaw has come and some conspiracy is going against her (the deceased). She further told that "MATE AU BANCHEI DEBENAHIN".
Such a statement appears to have been taken on record with the aid of Section 32 of the Indian Evidence Act at a time when the appellant was being tried for the offence under Section 304B and such statement was admissible under Clause (1) of the said section as it related to the cause of death of the deceased and the circumstances of the transaction which resulted in her death. Such a statement is not admissible in evidence for the offence punishable under Section 498A of the Indian Penal Code and has to be termed as being only a hearsay evidence. Section 32 is an exception to the Hearsay Rule and deals with the statements or declarations by a person, since dead, relating to the cause of his or her death or the circumstances leading to such death. If a statement which State Vs Ashok Kumar Wadhwa S.C. NO. 458/17 // FIR No. 223/16 // PS Prashant Vihar Pages 10 of 11 otherwise is covered by the Hearsay Rule does not fall within the exceptions of Section 32 of the Evidence Act, the same cannot be relied upon for finding the guilt of the accused..."
14. In view of the above discussion, it is held that prosecution has failed to prove charges against the accused. Hence, accused Ashok Kumar Wadhwa is acquitted of the offence he was charged with.
15. The personal and surety bonds of the accused are hereby canceled. Surety is hereby discharged. The endorsement made, if any, on any document(s) of soundness of surety, be cancelled and the document be returned to surety.
16. However, in terms of Section 437(A) Cr.P.C., the accused has furnished personal bond in the sum of Rs. 10,000/ with one surety of the like amount, which are accepted with the directions to appear before Higher Court, in the event, he receives any notice of appeal or petition against the judgment.
File be consigned to record room.
UMED Digitally signed
by UMED SINGH
SINGH GREWAL
Date: 2019.12.16
GREWAL 17:08:27 +0530
Announced in the open Court (Umed Singh Grewal)
On this 16th December, 2019 ASJ : Spl. FTC (North)
Rohini Courts : Delhi
State Vs Ashok Kumar Wadhwa
S.C. NO. 458/17 // FIR No. 223/16 // PS Prashant Vihar Pages 11 of 11