Delhi District Court
State vs . Baldev on 28 May, 2014
- :1 : -
IN THE COURT OF MS. RITU SINGH,
MM, SHAHDARA (MAHILA COURT NO. 1), KKD, DELHI
FIR NO. 602/03
UNIQUE I.D. NO.02402R0716842005
PS NAND NAGARI
U/SEC. 354/506 IPC
STATE VS. BALDEV
1. Name of the complainant: Sunita
w/o Sh. Shyam Narayan,
r/o A-3/359, Nand Nagari,
Delhi.
2. Name of the accused, his: Baldev
parentage and address. s/o Mool Chand,
r/o A-4/124, Nand Nagari,
Delhi.
3. Offence complained : u/s 354/506 IPC
4. The date of order : 28-05-2014
5. The final order reserved : 28-05-2014
6. Acquitted or convicted : Acquitted
THE BRIEF REASONS FOR THE DECISION : -
1. Challan was filed in the present case on 14-10-2005 against the accused on the basis of FIR No. 602/03, u/s 354/506 IPC in PS Nand Nagari on the complaint of complainant Sunita.
2. The case of prosecution is that on 10-12-2003 at about 9.30 p.m. at A-4/124, Sindhi Dental Clinic, Nand Nagari, Delhi, accused Baldev s/o Mool Chand caught hold of complainant Smt. Sunita, pressed her breast and kissed her and threatened the complainant to kill her if she made complaint to the police.
3. Complainant has alleged in the complaint that on 10-12-2003 at about 9.30 p.m. she alongwith her brother-n-law went to the Sindhi FIR NO. 602/03 P...........1/15
- :2 : -
Dental Clinic where the accused after making her sit on the patient chair pulled the curtain so that the brother-in-law of the complainant could not see them. Complainant has further alleged in her complaint that thereafter accused give two injections to the complainant and put down her shawl and saree on her leg and thereafter he rubbed his hands on waist of the complainant and tried to remove DAAD of the complainant and accused had pulled shawl of the complainant as a result there was only blouse on complainant's body. It is alleged that accused started to put his hand on complainant's kamar and started to press complainant's breast, repeatedly. It is alleged that the complainant protested against the act of the complainant, accused threatened the complainant that he would kill her if she raised alarm. It is further alleged that after removing the DAAD of the complainant, accused held her face and both is hands and kissed her on her cheeks and again threatened her not to tell this to anyone. Complainant has alleged that she informed about the incident to her brother in law namely Aadesh, who accompanied her. She requested to take legal action against the accused.
4. After registration of FIR, investigation was conducted. Cognizance of offences were taken by my Learned Predecessor Judge. Arguments on charge were heard and accused was charged of offences punishable u/s 354/506 IPC vide order dated 09-05-2006. The accused pleaded not guilty to the charge and claimed trial. Thereafter, the matter was listed for evidence.
FIR NO. 602/03 P...........2/15
- :3 : -
5. To prove its case prosecution has examined six witnesses. Prosecution has examined the complainant Smt. Sunita as PW1, who has relied upon Ex.PW1/A i.e. her statement recorded by the police, Ex.PW1/B i.e. site plan prepared at her instance by police and Ex.PW1/C i.e. arrest memo of accused bearing her signatures at point- A. Prosecution has further examined HC Rajender, 218/ND, PS Parliament Street as PW2, who accompanied with IO to the site of incident. Prosecution has further examined Retired SI Dharamvir Singh, Duty Officer as PW3. Prosecution has further examined Aadesh, brother-in-law of the complainant as PW4. Prosecution has further examined Smt. Shanti w/o Late Sh. Dinanath, aged 70 years r/o A-4/124, Nand Nagari, Delhi, landlady of the accused as PW5. Prosecution has further examined Sh. Rakesh s/o Late Sh. Ramesh Chand, aged about 45 years r/o C-2/137, Nand Nagari, Delhi as PW6.
6. Complainant Smt. Sunita who herself is the victim of the incident was examined as PW1, who has stated in her examination that accused present in the court kissed on her cheek and that upon this she stood up as she was frightened and alongwith her brother-in-law went to PCO and made call on 100 number. PW1 was cross examined by counsel for prosecution on the ground that she has resiled from her earlier statement. During the course of cross examination by counsel for prosecution, PW1 has deposed that it is correct that incident occurred on 18-10-2003 at 9.30 p.m. She denied the suggestion that the accused present in the court after giving her injection, put her FIR NO. 602/03 P...........3/15
- :4 : -
shawl and her saree on her lap after getting down the same from her head and body. PW was confronted with her statement in Ex.PW1/A from point-A to point-A1 where it was recorded otherwise and to this PW had voluntarily deposed that accused had pulled her shawl as a result there was only blouse on her body. She denied the suggestion that after putting off her shawl the accused started to put his hand on her KAMAR and started to press her breast. Again, PW was confronted with her statement in Ex.PW1/A from point-B to point-B1. She denied the suggestion that she resisted his hand 2-3 times but on the pretext of taking out her teeth the accused again pressed her breast and again she was confronted with statement Ex.PW1/A from point-C to point-C1. She denied the suggestion that when she resisted the accused threatened to kill her if she raised alarm and again she was confronted with statement Ex.PW1/A. She deposed during her cross examination that it is correct that after taking out her teeth, Dr. / accused caught hold her face by both his hands and kissed her cheeks. She denied the suggestion that after the said act, the accused threatened to kill her. PW1 has voluntarily deposed during her cross examination by prosecution that accused caught hold her face by both his hands and kissed her cheeks and had pulled her shawl from her body.
7. During the course of her cross examination, PW1 failed to state the date of incident. PW1 has stated during her cross examination that devar Aadesh (brother in law) was sitting in the same room at some FIR NO. 602/03 P...........4/15
- :5 : -
distance but she could not shout when the accused tried to outrage her modesty as accused had put medicine in her mouth. During the course of her cross examination by Ld. Defence counsel, PW1 deposed that the police had recorded her statement on the day of incident. After her statement was recorded by the police, she went to the house of her husband's Mausi. She denied the suggestion that she never visited the clinic of the accused as she did not have the receipt or prescription. She denied the suggestion that she leveled false allegations against the accused as her dever had a fight with the accused two months prior to the incident. She denied the suggestion that she did not reside in Delhi and her devar had called her from Lucknow and at his instance, she had filed the present case so as to settle the score of her devar with the accused. She denied the suggestion that on the instigation of her devar she filed a false and fabricated case against the accsued. She denied the suggestion that she is deposing falsely.
8. Prosecution examined witness Sh. Adesh s/o Sh. Shyam Bihari, devar of the complainant, who was also present in the clinic at the time of incident. During the course of his examination in chief, PW4 has deposed : -
"I am ricksaw puller. I do not remember the date, time and year, however, the incident had occurred 7 years back. On that day, I had taken my bhabhi to A-4 to get some medicine. My bhabhi inside the FIR NO. 602/03 P...........5/15
- :6 : -
clinic. She had earlier stated that she was having pain her teeth. After some time she cried and cam outside. The clinic was being run by the accused present in the court today. My bhabhi stated that the accused was doing badtamiji and chhedachhadi with her. My bhabhi also stated that the accused had put his mouth near her mouth. I do not remember who made call on 100 number. Police came there and took the accused. I am illiterate. I have nothing more to say".
9. Thereafter, Ld. APP with the permission of court cross examined the PW4 on certain material points with permission of court. During the course of examination of witness PW4, he has deposed that : -
"I do not remember whether the inquiries were made by the police or not. I also do not remember whether my statement was recorded by the police or not".
10. PW4 was shown statement Mark-X and after reading the same, PW4 has deposed that it is correct that the incident occurred on 18-10-2003, however, he stated that he did not remember whether he had gone to Sindhi Dental Clinic two months prior to the incident. PW4 has admitted that on the date of incident his bhabhi was made to sit on a chair inside the clinic of the accused and accused had put parda. PW4 has further deposed during his cross examination by Ld. APP FIR NO. 602/03 P...........6/15
- :7 : -
that : -
"it is correct that after 15-20 minutes my bhabhi came outside and started to go to home. It is wrong to suggest that I had given Rs.50/- to doctor for treatment of my bhabhi. (Confronted with statement Mark-X from point-A to A). I do not remember whether my bhabhi had stated to me at the house that the accused had done chumma chaati with her. I do not know whether my bhabhi stated to me that the accused doctor had threatened to kill her, if she narrated the incident to anybody. I do not remember whether I had made call on 100 number. It is correct that my bhabhi had accompanied the police and took them to the clinic / shop of the accused doctor and showed the accused to the police. I am illiterate, so I cannot read the sign board which the doctor had put in front of his clinic. I had also got treatment from the accused prior to the incident. I had gone to his clinic as there was a signed board depicting teeth and that is why I came to know that he is dentist. I had recommended my bhabhi to get the treatment from the accused present in the court today."
FIR NO. 602/03 P...........7/15
- :8 : -
11. PW4 during the course examination by the counsel of accused, PW4 has deposed that at the time of incident, the complainant was alone and clinic was small.
12. Prosecution has examined independent witness Smt. Shanti w/o Late Sh. Dinanath, aged 70 years r/o A-4/124, Nand Nagari, Delhi, who is the landlady of the accused as PW5. PW5 Smt. Shanti has deposed during her examination that accused was his tenant in the year 2003 and was running a clinic in the name and style of Sindhi Dental Clinic. PW5 had identified the accused present in the court.
13. PW5 was cross examined by Ld. APP on the point that witness was resiling on the fact of entrance of the complainant Sunita inside the clinic of the accused on the alleged date of incident. During the course of cross examination by the Ld. APP, PW5 had denied the suggestion that on the date of incident she had seen the complainant Sunita alongwith her devar Adesh while entering inside the clinic of the accused Dr. Baldev. PW5 was confronted with her statement Mark- X1 and she had stated that she never made the aforesaid complaint Mark-X1.
14. Prosecution has examined HC Rajender, 218/ND, PS Parliament Street as PW2, who has deposed in his examination that he was posted at PS Nand Nagari on 18-10-2003 and at about 10.30 p.m. received a call upon which DD no. 24A, he alongwith IO Rakesh Kumar reached at A-3/359, Nand Nagari, Delhi where they met the complainant. PW2 HC Rajender has deposed that IO made a tehrir on FIR NO. 602/03 P...........8/15
- :9 : -
the statement of the complainant and handed it to the PW2 for the registration upon which he got the case registered at PS Nand Nagari, went back to the spot and handed over the copy of FIR and rukka to the IO. PW2 had deposed that accused Baldev was arrested vide arrest memo Ex.PW1/C. PW2 had deposed during his examination that the signed board of the Sindhi Dental Clinic was photographed and taken into police custody vide seizure memo Ex.PW2/A bearing his signature at point-A. During the course of his cross examination, PW2 has stated that there was no complaint against the accused at that time in PS Nand Nagari and the complainant had refused for her medical examination.
15. Prosecution has examined, IO SI Rakesh Kumar, No. D-1010, SO to Additional C.P. Crime, PHQ, ITO, Delhi as PW7, who had deposed during his examination that he was on duty with Ct. Rajender from 8.00 p.m. to 8.00 a.m. and on receipt of DD no. 24A, which is Ex.PW3/A, he alongwith Ct. Rajender went to A-3/359, Nand Nagari, Delhi where Sunita and her devar Adesh met them. PW7 SI Rakesh Kumar has further deposed that he alongwith the complainant and Adesh and Ct. Rajender went to the spot of incident i.e. A-4/124, Nand Nagari, Sindhi Dental Clinic and found accused at the clinic. PW7 has deposed that he recorded statement of complainant Sunita and prepared rukka on the basis of her statement which is Ex.PW3/C. PW7 had deposed that he handed over the rukka to Ct. Rajender for registration of FIR and after registration of FIR Ct. Rajender handed FIR NO. 602/03 P...........9/15
- : 10 : -
over copy of FIR and original rukka. PW7 has deposed that he prepared a site plan of the place of incident which is Ex.PW1/B and arrested the accused vide arrest memo Ex.PW1/C bearing his signature at point-C.
16. During the course of his cross examination, PW7 has stated that he reached the spot at 9.20 p.m. and had seized only the board of Sindhi Dental Clinic and not the instrument pertaining to abstracting teeth but it was installed at the spot. PW7 had admitted that he did not get the MLC of complainant conducted as it was not required since the case did not pertain to medical negligence and that he has recorded the statement of the landlady on the spot. PW7 had deposed that he had no knowledge whether any such type of cases had been registered against the accused or that he had recorded the statement of the landlady of the property at the spot. PW7 has deposed in his examination in chief that accused has not produced any documents pertaining to his medical practice.
17. Statement of the accused was recorded u/s 313 Cr.P.C. in which he had stated that he might have provided medical treatment to the complainant in respect of his tooth pain when the question was put to him by the court that in the process of extracting teeth of the complainant namely Smt. Sunita, he had outraged modesty of the complainant by taking kiss of the complainant. Accused has denied all the documentary evidence on record including complaint Ex.PW1/A, FIR Ex.PW3/B, site plan Ex.PW1/D, seizure memo of board of Sindhi FIR NO. 602/03 P...........10/15
- : 11 : -
Dental Clinic Ex.PW2/A, photographs of place of incident Ex.PH1 and PH-2, arrest memo Ex.PW1/C, DD entry no. 24A Ex.PW3/A and has chosen not to lead any defence evidence.
18. Thereafter final arguments were heard on behalf of prosecution as well as the accused.
19. Ld. counsel for accused has argued that as the primary witness / PW1 has turned hostile and has not supported her complaint in her testimony before the court, prosecution has failed to establish its case beyond reasonable doubt.
20. It is settled procedure of law, it is prosecution which has to bear responsibility of proving charge against accused beyond all reasonable doubt. In present case, though prosecution has examined seven witnesses, admitted fact is that there is no eye witness and case may be taken into consideration as solitary witness case.
21. The Hon'ble Supreme Court of India in Chittor Lal Vs. State of Rajasthan AIR 2003 SC 3590 has opined that : -
"It is the quality of evidence of the single witness whose testimony has to be tested on the touchstone of credibility and reliability. If the testimony is found to be reliable. There is no legal impediment to convict the accused on such proof."
22. It is equally point to point out the prosecution in her testimony before court failed to state the date of incident. There is discrepancy in testimony of prosecutrix and Rukka, which is Ex.PW3/E. Prosecutrix FIR NO. 602/03 P...........11/15
- : 12 : -
went to her house or of Mausi, after the alleged incident.
23. From the evidence on record, it is admitted fact that place of incident was a single small room and PW1 has admited that her devar, PW2 Adesh and one person was also present in same room, though they could not see her as the curtain was drawn. It is highly improbable that prosecutrix made no noise nor rushed for help to her devar Adesh, present in same room when accused allegedly sexually assaulted her or threatened her as detailed in FIR.
24. Prosecutrix has alleged that she could not shout, as accused had administered medicines to her. Be that as it may, it is difficult to believe that despite presence of her relative Adesh at such proximity, prosecutrix did not resist the alleged act of accused nor did she seek any help from her devar Adesh, who was sitting just behind curtain, in same room.
25. It is also important to point out that prosecutrix (PW1) has been confronted on large number of issues by prosecution itself and prosecutrix has resiled from her allegations recorded in her complaint and FIR on material points and same are reproduced herein for reference : -
"My statement was recorded by the Police and I had just signed the same. Police had not read over my statement to me. I had also not gone through my statement. At this stage, the statement of the witness Ex.PW1/A is read over the explained to the FIR NO. 602/03 P...........12/15
- : 13 : -
witness.
It is correct that incident occurred on 18-10-2003 at 9.30 p.m. It is wrong to suggest that the accused present in the court after giving me injections put my shawl and my saree on my lap after getting down the same from my head and body.
Confronted with statement Ex.PW1/A from point-A to point-A1 where it is so recorded. Vol. Accused had pulled my shawl as a result there was only blouse on my body. It is wrong to suggest that after putting off my shawl the accused started to put his hand on my KAMAR and started to press my breast. Confronted with statement Ex.PW1/A from point-B to point-B1 where it is so recorded. It is wrong to suggest that I resisted his hand 2-3 times but on the pretext of taking out my teeth the accused again pressed my breast. Confronted with statement Ex.PW1/A from point-C to point-C1 where it is so recorded. It is wrong to suggest that when I resisted the accused threatened to kill me if I raised alarm. Confronted with statement Ex.PW1/A from point-D to point-D1 where it is so recorded. It is correct that after taking out my teeth, Dr. / accused caught hold my face by both his hands and kissed FIR NO. 602/03 P...........13/15
- : 14 : -
my cheeks. It is wrong to suggest that after the said act, the accused threatened to kill me. Confronted with statement Ex.PW1/A from point-E to point-E1 where it is so recorded. Vol. Accused had only kissed my cheeks and had pulled my shawl from my body. Accused is present in the court today."
26. Upon appreciation of evidence of PW1, sole eye witness in this case, following material contradictions are clearly made out : -
1. prosecutrix has resiled from her statement made to police as detailed in FIR that accused had sexually molested her by pressing her chest after removing her shawl from her head.
2. prosecutrix has resiled in her testimony before court from her statement made to police as detailed in FIR that accused had threatened to kill her if she raised alarm.
27. In light of the testimony of PW1, clearly no offence is established against accused u/s 506 IPC and accused is accordingly acquitted of offence u/s 506 IPC.
28. Considering that prosecutrix, who is sole eye witness of the incident and primary witness in this case, has resiled on material points of her allegations detailed in FIR lodged on her complaint and other contradictions in her testimony, she does not inspire confidence of court.
FIR NO. 602/03 P...........14/15
- : 15 : -
29. In considered opinion of this court, prosecution has not been able to establish guilt of accused u/s 354 IPC beyond reasonable doubt and accordingly, in these circumstances accused is entitled to benefit of doubt.
30. In light of aforesaid observations, accused is acquitted of offence u/s 354 IPC as well. Bail bond of accused furnished at the time of court bail, shall remain in force for a period of six months. Surety of the accused shall not be discharged for a period of six months from today in view of Section 437A Cr.P.C.
File be consigned to Record Room.
ANNOUNCED IN OPEN COURT (RITU SINGH)
ON 28-05-2014 MM/MAHILA COURTS No. 1
SHAHDARA, KKD, DELHI
FIR NO. 602/03 P...........15/15