Delhi District Court
State vs . Rohit Rajput on 15 January, 2013
IN THE COURT OF MS SHIVALI SHARMA :
METROPOLITAN MAGISTRATE/MAHILA COURT (WEST)
DELHI
FIR NO:113/10
P. S. Maya Puri
U/s 354 IPC
ID No. 02401R0568522010
15.01.2013
STATE VS. ROHIT RAJPUT
Date of institution : 09.12.2010
Date of Commission of offence : 04.10.2010
Name of the Complainant : Smt. Anju Khanna
Name, parentage & address : Rohit Rajput, S/o Sh.
of the accused Bhanwar Singh, R/o
D2/99, Janak Puri,
New Delhi.
Offence Complaint of : U/s. 354IPC
Plea of the accused : Pleaded not guilty
Final Order : Convicted
Date for reserve of order : 04.01.2013
Date of announcing of order : 15.01.2013
BRIEF FACTS AND PRE TRIAL PROCEDURE
1. The present case has been registered on the basis of a complaint FIR No. 113/10 State Vs. Rohit Rajput 1 of 46 dated 05.10.2010 lodged by complainant Smt. Anju Khanna (which has been proved as Ex. PW1/A). It has been alleged by the complainant in complaint Ex. PW1/A that on 04.10.2010 at about 1.30 pm she had gone to clinic of the accused Dr. Rohit Rajput located at Janak Puri along with her two daughters namely Priyanka and Kashish for getting her ears tested. The accused called the complainant inside his cabin and after making her seated checked her right ear. After checking, he informed her that there was a small hole in her ear drum. She was not convinced with his diagnosis and informed the accused accordingly. On this, the accused called her daughter Priyanka aged about 11 years inside the cabin on the pretext of showing the ear to her. She remained inside the cabin along with her two daughters for about 20 minutes and her daughter Priyanka was standing behind her back. Thereafter, they left the clinic. At about 10.00 pm in the night, daughter of complainant namely Priyanka informed her that on the pretext of showing her the inside of her mother's ear, Dr. Rohit Rajput made her sit on his lap and had touched her private parts. Being alarmed she got up however, the accused again made her sit on his lap by holding her from her waist and again misbehaved with her. Hence the present complaint.
CHARGE
2. After completion of the investigation, charge sheet was filed u/s FIR No. 113/10 State Vs. Rohit Rajput 2 of 46 354 IPC in the Court on 09.12.2010. Cognizance was taken against the accused and the accused was summoned. Charge for offence u/s 354 IPC was framed against the accused on 24.05.2011 to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
3. Prosecution has examined seven witnesses in all to bring home the guilt against the accused. Their testimonies are touched upon in brief in order to have a better understanding of the case.
4. PW1 is the complainant Smt. Anju Khanna who stated and reiterated on oath the contents of her complaint which has been proved as Ex. PW1/A. She further deposed that during her checkup the accused had called her elder daughter namely Priyanka aged about 11years on the pretext of showing the inside of the ear to her. After the checkup and prescription, she also asked the accused to check the ear of her younger daughter Kashish as she was complaining of pain. Both her ears were also checked by the accused and after recording of prescription, she along with both her daughters returned back to her home. After returning home she observed that her daughter Priyanka was in a depressed mood and was complaining of a headache. She did not pay much attention. At about 10.00 pm, her elder daughter Priyanka vomited and told her that at the time when the accused was doing checkup of PW1,he had held her (i.e Priyanka) from FIR No. 113/10 State Vs. Rohit Rajput 3 of 46 her back and made her sit on his lap. He had also lifted her shirt and touched her on her private parts and did "battmezee" with her. On this PW1 had asked her daughter that why she had not informed her earlier about the misbehaviour of the accused. Priyanka told her that she was not able to gather courage to inform her about the misbehaviour of the accused due to shame and embarrassment.
5. Thereafter, PW1 made a telephonic call to the accused and scolded him for his misbehaviour with Priyanka. But, the accused denied having done any misbehaviour. Thereafter the accused started calling PW1 again and again and she, being scared, switched off her mobile phone. When her husband returned back from his work she informed him about the entire episode. He was very angry. She along with her husband and father in law went to PS Mayapuri. Her complaint Ex. PW1/A was recorded by the police. Thereafter, they came back home. After a few days of the incident, she along with her daughter had visited Tis Hazari Court for getting Priyanka's statement recorded. Statement of her daughter was also recorded in PS Tilak Nagar.
6. As she was not disclosing the complete facts, she was cross examined by Ld. APP for the State after seeking permission from the Court. In her crossexamination she admitted that the disclosure statement of the accused was also recorded on the same FIR No. 113/10 State Vs. Rohit Rajput 4 of 46 day on which she had made her complaint i.e 05.10.2010. She also testified that they had also stayed at the PS itself for full night and participated in the investigation conducted by the police and the site plan was also prepared at her instance. Disclosure statement of the accused was proved as Ex. PW1/B. Site plan was proved as Ex. PW1/C. She further stated that accused was arrested in her presence vide arrest memo Ex. PW1/D and was personally searched vide memo Ex. PW1/E. Certain photographs of the clinic of the accused were proved as Ex. P1 to P5.
7. In her cross examination by Ld. Defence counsel she admitted that when her right ear was being checked, her daughter Priyanka was standing behind her. She also testified that she had called the doctor i.e the accused before going to the clinic to check his availability. She admitted that her son had also accompanied her along with her daughters when he had gone to the clinic of the accused on the date of the incident. The school of her children was closed on the said date. Apart from her, her younger daughter Kashish was also having ear problem. She further testified that at the time of the incident, except for her, her three children and the accused, no one else present in the clinic of the accused.
8. She denied the suggestion that after getting her and her younger daughter's ears check, she had also tried to get her son's ear examined by the accused. Rather she stated that the accused had FIR No. 113/10 State Vs. Rohit Rajput 5 of 46 seen the ear of her son jokingly to show him the inside of the ear. She further testified that the fee of the accused is Rs. 400/ per patient and on the date of incident the fee of her and her daughter was charged by the accused. She stated that she did not remember whether the accused had demanded fees for checking the ear of her son as well. She denied the suggestion that a quarrel had taken place between the accused and her for charging of exorbitant fees. She further stated that she did not remember the exact amount of fees which had been paid by her on the date of incident. She denied that accused had also examined her son and stated that if he would have examined her son as well, receipt for his examination would have also been given. She further stated that she had given the receipts of her and her daughter to the police at the time of making of her complaint.
9. PW1 further testified that prior to the incident also she had visited the clinic of the accused. She also admitted that accused had placed a machine in her right ear for the purpose of checking her ear and was holding the said machine with one hand. But she pleaded ignorance when given the suggestion that the accused was holding the machine with one hand and with the other hand he was holding her ear.
10.Witness also denied the suggestion that the whole dispute was regarding the quantum of fees charged by the accused which had FIR No. 113/10 State Vs. Rohit Rajput 6 of 46 resulted into a quarrel and because of which the accused was falsely implicated in the present matter. She also denied the suggestion regarding the impossibility of the occurrence of the incident. She denied the other suggestions given by Ld. Defence counsel.
11.PW2 is the husband of the complainant Sh. Dinesh Khanna who deposed that on 04.10.2010, he came to know about the incident from his wife (PW1) after he had reached his home after about 10.00 pm. His wife informed him that around 1.30 pm on that day, she had gone to the clinic of Dr. Rohit Rajput located at Janak Puri along with her two daughters Priyanka and Kashish. While his wife was getting her ear checked by the doctor, the doctor misbehaved with his daughter Priyanka. He also enquired from his daughter Priyanka who told him that while examining the ear of PW1, the accused had called her on the pretext of showing her the ear of her mother. At that time he held her and made her sit on his lap and touched her on her private parts. Feeling ashamed, she got up from the lap but the accused made her sit on his lap again and repeated his misbehaviour and also touched her on her stomach. Thereafter he made a telephonic call to the accused and scolded him for his misbehaviour with his daughter on which the accused told him that he was a Rajput and he would see him. Thereafter, he along with his brother, father and few FIR No. 113/10 State Vs. Rohit Rajput 7 of 46 other people went to the house of the accused. Father of the accused was also present at his house at that time. Some heated words were exchanged between them and from there they went to PS Maya Puri to get their complaint registered.
12.In his crossexamination by Ld. Defence counsel, he deposed that he has a business of jewellery. He testified that his son had not visited the clinic on the date of the incident as he was supposed to be in his school which is till 1.30 pm. He further testified that he had abused the accused over phone. He also stated that prior to his calling the accused, his wife had also called him. He denied the suggestion that the real dispute between him and the accused was over fees which the accused had charged from his wife as he felt that it was exorbitant and accordingly he had falsely implicated the accused in the present case. He denied the other suggestion given by the Ld. Defence counsel.
13.PW3 is the victim Priyanka Khanna who deposed on 22.05.2012 that about two years back in the month of October, she along with her siblings and mother had gone to the clinic of the accused. She identified the accused and stated that he was Dr. Rohit Rajput and he treats ear problems. Her mother was having some problem in her right ear, so they had visited the clinic of the accused for check up. While the accused was examining her mother he called her near him stating that he will show her the FIR No. 113/10 State Vs. Rohit Rajput 8 of 46 inside of her mother's ear. She was called from the back side of her mother. She went near him and he made her sit on his lap on the pretext of showing her the ear of her mother. He put his hand inside her kurta and started touching her on her back. She suddenly stood up. He again caught hold of her from the back and made her sit on his lap. Thereafter, when the check up of her mother was over she went along with her. When she reached home, she was suffering from fever and went to sleep. When she got up, she was having vomiting and feeling restless and depressed. Then she informed her mother about the incident. Her mother informed her father and thereafter they went to the PS for lodging the complaint. She was also taken to one Magistrate for recording of her statement Ex. PW3/A.
14.In her crossexamination by Ld. Defence counsel, she was confronted with her statement recorded under section 164Cr.P.C (Ex. PW3/A) and statement recorded under section 161 Cr.P.C (Ex. PW3/D1) where the fact that the accused had put his hand inside her kurta and touched her had not been recorded.
15.She testified that she had taken an appointment from the accused telephonically prior to visiting the clinic. She further testified that on the date of incident, only her mother was having problem in her ear, however the ear of her younger sister was also got checked. She further testified that the accused had also seen the FIR No. 113/10 State Vs. Rohit Rajput 9 of 46 ear of her younger brother casually on the asking of her mother as her younger brother was insisting for the same. She admitted the suggestion that her mother had asked the accused to give her medicine as she was also not feeling well (having harrarat) on which the accused had refused stating that he was not a Physician and was only an Ear Doctor. She also admitted that while the accused was examining her mother, she along with her siblings was present inside the cabin. She further testified that accused had checked the ear of her mother with the help of an instrument which he was holding in his right hand and his other hand was free. The instrument was well fitted where it was kept and was not moving and other hand of the accused was also not required while using the instrument or even for setting the same.
16.She denied the suggestion that just opposite the chair of the patient there were mirrors on the wall rather she stated that they were covered with posters. She further testified that her brother and sister were sitting on a stool which was kept in the cabin and she was standing near her siblings. The stool on which her siblings were sitting was not exactly in front of the patient chair and was slightly towards the right. However, her mother could see them from her chair with slight difficulty. She pleaded ignorance when questioned about the fees demanded by the accused and that paid by her mother. However, she admitted that her mother had FIR No. 113/10 State Vs. Rohit Rajput 10 of 46 asked softly for reduction of the fee which demand was politely declined by the accused. She denied the suggestion that there were heated exchange of words between her mother and the accused on the date of incident over the fees.
17.She further testified that her father had returned back from his work on the date of incident at about 10.00 pm and her mother told him about the incident as informed by her to her mother after offering him water. However, she pleaded ignorance when questioned about the fact that her mother had also informed her father about the dispute over charging of exorbitant fees by the accused. She also stated that she was not present inside the room when her mother had informed her father about the incident.
18.She further testified that when they had reached the clinic there was no other patient and stated that she was not aware if any one had come thereafter. She also stated that she could not inform her mother about the incident immediately as she was too shocked and stunned and disturbed. She admitted that there was a mirror in the cabin of the accused exactly in front of the seat of the patient. However, she denied the suggestion that her mother could see herself as well as what was going on behind her in the said mirror, since the mirror was covered with posters. She denied the other suggestions given by Ld. Defence counsel.
19.PW4 is Ct. Virender who stated that on 05.10.2010, he had FIR No. 113/10 State Vs. Rohit Rajput 11 of 46 joined investigation of the present case with the IO/SI Ram Gopal. He reached the spot along with the copy of FIR and the original rukka from the PS and handed over the same to the IO. Site plan Ex. PW1/C was prepared in his presence. Accused was arrested in his presence by the IO vide arrest memo Ex. PW1/D and he was also personally searched vide memo Ex. PW1/E. His statement was recorded under section 161 Cr.P.C at the PS by the IO. On crossexamination by Ld. APP for the State he admitted that disclosure statement of the accused Ex. PW1/B was also recorded by the IO in his presence. He duly identified the accused.
20.In his crossexamination by Ld. Defence counsel he stated that he had left the PS at around 2.00 am and reached the house of the accused at about 2.15 am. When he had reached the spot, complainant and her husband were present there. He denied the suggestion that the signatures of the accused were taken on blank papers and stated that the disclosure statement Ex. PW1/B was recorded in his handwriting. He further testified that when he had reached the spot neither the security guard nor the beat constable nor any neighbours were present there. He denied the other suggestions given by Ld. Defence counsel.
21.PW5 is IO/SI Ram Gopal who deposed that in the midnight intervening 4/5.10.2010, he was posted at PS Maya Puri. On that day, complainant Anju Khanna had come to the PS along with her FIR No. 113/10 State Vs. Rohit Rajput 12 of 46 husband Dinesh Khanna and got her statement Ex. PW1/A recorded. On the basis of the said statement rukka Ex. PW5/A was prepared by him and handed over to the DO for registration of the FIR. Thereafter, he left for the spot i.e D2/99, Janak Puri, along with the complainant and her husband. In the meantime, Ct. Virender also reached there along with original rukka and copy of the FIR. Site plan Ex. PW1/C was prepared by him at the instance of the complainant. He also met Rohit Rajput at the said address and the complainant confirmed his identity. Preliminary interrogation was conducted by him and his disclosure statement Ex. PW1/B was recorded. Accused was arrested vide memo Ex. PW1/D. He gave the intimation of arrest of the accused to his father Sh. B.S. Rajput. Personal search of the accused was conducted vide memo Ex. PW1/E thereafter accused was taken to the PS. Being a bailable offence, accused was released on police bail. Photographs of spot Ex. P 1 to P5 were also clicked by him. Statement of all the prosecution witnesses were recorded under section 161 Cr.P.C. Statement of victim Priyanka Khanna was also recorded under section 164 Cr.P.C by Sh. Vishal Pahuja, Ld. MM. On completion of investigation, challan was filed by him.
22.In his crossexamination by Ld. Defence counsel he stated that when he had reached the spot at about 1.45 am, the same was lying deserted and he did not meet any one. No police official had FIR No. 113/10 State Vs. Rohit Rajput 13 of 46 reached before him. He stated that he had received a PCR call at about 10.30 pm and the telephone number of the caller was found switched off. He testified that after receiving PCR call from accused Rohit Rajput that someone was disturbing him from a mobile number, he had gone to the house of the accused at about 11.00 pm. After reaching his house he tried to contact him on his mobile however no one picked up the phone. He did not knock on the door or rang the bell of the house of the accused nor enquired about the call from neighbours. He pleaded ignorance when asked about the dispute / quarrel between the complainant Anju Khanna and the accused at the house of the accused prior to lodging of the complaint.
23.He denied that the husband of the complainant Dinesh Khanna was smelling of alcohol when he had gone to the PS on the date of the incident. He also stated that although he was aware about the PCR call made by the accused Rohit Rajput, he did not make any inquiry from accused Rohit Rajput when he had visited his house with the complainant.
24.He testified that there were mirrors at points A1, A2 and A3 shown on photograph Ex. P1 (i.e exactly in front of the chair of the patient). He also admitted that when a patient is sitting at point A4 in photograph Ex. P1, he will be able to see what is happening behind him. He further admitted that in the cabin, on FIR No. 113/10 State Vs. Rohit Rajput 14 of 46 the wall towards the waiting area there is transparent glass and the patients standing outside the cabin can see inside. However, he stated that a patient sitting outside the cabin cannot see what is happening inside.
25.He further stated that there was attendant in the clinic of the accused when he had gone to the clinic for the photographs. But he stated that he did not make any investigation from him. He also stated that he had not made any investigation from the neighbours of the accused or RWA of his society. No independent witness was examined by him. He denied the other suggestions given by Ld. Defence counsel.
26.PW6 is Sh. Vishal Pahuja, Ld. MM who had recorded the statement under section 164 Cr.P.C of the victim Priyanka Khanna. He deposed that on 11.10.2010 an application Ex. PW5/B was moved by the IO before Sh. Loveleen, Ld. MM for recording the statement of the prosecutrix Priyanka Khanna which was marked to him. He kept the same for disposal on the same day vide order Ex. PW6/A. Statement of the prosecutrix Ex. PW3/A was recorded after taking all the necessary precautions and after due identification of the prosecutrix by the IO. After recording the statement certificate as required under section 164 Cr.P.C was also given which is Ex. PW6/B. IO moved an application for copy of the statement which was allowed vide order Ex. PW6/C. FIR No. 113/10 State Vs. Rohit Rajput 15 of 46
27.In his crossexamination by Ld. Defence counsel, PW6 stated that for ensuring that the prosecutrix was giving her statement voluntarily without any force, fear or pressure or any influence from any one, he had put various questions to her which are Ex. PW6/D1. He denied the suggestion that the prosecutrix was tutored by her parents prior to the recording of her statement.
28.PW7 is the DO/HC Suresh who deposed that on 05.10.2010 he had received a rukka from SI Ram Gopal on the basis of which FIR Ex. PW7/A was recorded. After registration of the FIR, copy of the same as well as original rukka was handed over to Ct. Virender for onward transmission to the IO. He also proved DD No.32A dated 04.10.2010 as Ex. PW7/B.
29.In his crossexamination by Ld. Defence counsel, he stated that since DD no. 32A dated 04.10.2010 was not recorded by him he was not aware whether any information of any kind was received at the PS from the accused prior to the recording of the said DD. STATEMENT OF ACCUSED AND DEFENCE EVIDENCE
30.Statement of the accused was recorded u/s 313 Cr.P.C wherein he denied all the allegations made against him and stated that he had been falsely implicated in this case.
31.Accused admitted that on the date of incident i.e 04.10.2010 the complainant had visited his clinic at about 11.30 pm along with her three children. He had first examined the complainant and told FIR No. 113/10 State Vs. Rohit Rajput 16 of 46 her that there was a perforation in her ear. However,she was not satisfied with the diagnosis and informed him accordingly. On this, he rebuked her and told her that if she was not satisfied with his diagnosis, she should leave and take treatment from some other doctor. Thereafter, complainant asked him to examine her daughter Kashish. On her request, he examined the child. Complainant then asked him to examine her son which was also done by him. Then she asked to examine her elder daughter Priyanka. He inquired about her problem on which he was informed by the complainant that she was generally not feeling well. On this, he informed the complainant that he was an ENT Specialist and not a general physician and Priyanka should be taken to a general physician. Thereafter he asked for his fees of Rs.1200/ i.e at the rate of Rs.400/ per patient as he had examined three patients. However, the complainant refused to give him the total fees and gave only Rs.600/. There was a hot exchange of words between them on the issue of fees. He told PW1 not to visit his clinic again and the complainant left the clinic threatening to teach him a lesson.
32.At about 11.00 pm on the same day he received a call from the husband of the complainant who used foul language towards him and also abused him. There was a hot exchange of words from both sides. Husband of the complainant threatened him and he FIR No. 113/10 State Vs. Rohit Rajput 17 of 46 disconnected the phone. Thereafter he made a call to 100 number and informed about the threatening calls being received by him. He also gave the telephone number and the name of the husband of the complainant to the concerned police officials. After about 15 minutes, a PCR van reached at his residence and two police officials came inside. After about 510 minutes, PW2 also came to his residence along with 1520 other persons and started quarrelling with him over the issue of his fees. The secretary of his RWA called SHO PS Maya Puri and informed him that some person had come to his residence and were threatening him and requested that police be sent immediately. After about 15 minutes IO/SI Ram Gopal arrived at his residence and all of them were taken to the PS. He was made to sit alone in a room at the PS and to sign certain blank papers and forms. Thereafter he was sent back to his residence at about 4/5.00 am and later on he came to know about the registration of the present false case against him.
33.After taking permission under section 315 Cr.P.C, accused examined himself as DW1 as his sole defence witness.
34.DW1 is the accused Rohit Rajput who stated on oath regarding the location and area of his clinic. He deposed that his clinic is a part of his residence at D2/99, Janak Puri, Delhi. There are two entrances of the clinic, one from outside and other from inside his house. His clinic consists of two separate areas one is the waiting FIR No. 113/10 State Vs. Rohit Rajput 18 of 46 area and other is cabin where he examine his patients. He has one assistant who remains in the waiting area until he is required and called by him in the cabin. His cabin is admeasuring about 8 X 8 feet. His clinic has been made in the veranda of his house by temporary aluminium fittings. The upper part of the wall in between his cabin and the waiting area of clinic is made of a two way glass. There is large mirror on the wall just opposite the glass wall in between his cabin and the waiting area. This mirror is so located that when he is examining the patient's right ear, the patient is facing the mirror. This position of his cabin has been clearly depicted in photograph Ex. P2. There is also a work station on the transparent wall about 2 feet. There is also a couch which is about 1.25 feet broad. While he is examining his patients the distance between the patient and him is hardly about 1 or 2 inches.
35.He further deposed about the visit of the complainant to his clinic on 04.10.2010 and stated that the complainant had called him on the date of the incident at about 1212:30 pm to ask about his availability. The complainant came to his clinic along with her three children on the same day after 1:00 pm. At that time one patient was already sitting in the waiting area with some ear drops in his ear. He examined the right ear of the complainant in his cabin and told her that she had perforation in her ear. She was not FIR No. 113/10 State Vs. Rohit Rajput 19 of 46 convinced with the diagnosis and informed him so. Being angry he told her that if she did not believe him she should go to some other doctor. Then she asked him to examine her daughter. Before examining her daughter he informed that full fee will be charged for examination of herself and her daughter as well. Thereafter, he examined her child and prescribed medicines for her. Then she asked him to examine her son. He examined her son and there was no problem in his ears and he wrote the said fact on the prescription slip. Thereafter, complainant asked him to examine her elder daughter as well. He enquired regarding the problem with her elder daughter. Complainant informed him that she was not feeling well since morning. On this he told her that he was not a general physician and she should be taken to a general physician. Thereafter, he refused to examine her elder daughter and asked for his fees of Rs 1200/ for examining three patients. The complainant was reluctant to pay the amount. There was some hot exchange of words between them and he told the complainant that if she was not in a position to pay the fees, she should not visit a specialist. Thereafter, Anju left after making a payment of Rs 600/ only. While leaving she threatened that she would teach him a lesson.
36. He further deposed that on the same day between 1011 pm after his family had finished their dinner, he received the FIR No. 113/10 State Vs. Rohit Rajput 20 of 46 telephonic call from Dinesh Khanna (PW2) husband of the complainant. Dinesh was sounding drunk and stated that how dare he had scold his wife and demanded exorbitant fees from her. He started abusing him. Accused also retaliated. There were hot exchange of words between them. Thereafter, the phone was disconnected. He was very angry and annoyed and called back at the same number. When he questioned Dinesh as to why he made such a call to him and informed him that he will lodge a complaint against him, he stated that he had never called him. He disconnected the phone. After about 510 minutes he again received a call from a different number. It was again a call of Dinesh and he threatened him on phone. Thereafter, he made a call to police at 100 number to inform the police. He also informed the name of the person who was calling him and the two phone numbers from which the call was made. After about 1520 minutes of the call, PCR van reached at his house. Two police officials came to his house and enquired from him. They had just started the conversation when Dinesh along with 1520 other persons came to his house. Quarrel took place at his house at that time and Dinesh was abusing him. There was a lot of commotion and the Secretary of the RWA of the area called the police at P.S. Mayapuri and informed about the same. On that call I.O of the present case namely SI Ram Gopal came to the spot. He took all FIR No. 113/10 State Vs. Rohit Rajput 21 of 46 of them to the PS for solving the matter. At the PS he was made to sit in a separate room and sign some blank papers and blank forms. At about 4.00 am he was asked to leave and when he enquired as to what action had been taken on his complaint he was not informed about it and he was later informed that an FIR was lodged against him. His father also informed him about the same.
37.In his crossexamination by Ld. APP for State he again admitted that on the date of incident i.e 04.10.2010 the complainant Anju had visited his clinic between 1 / 1.30 pm along with three children including the victim Priyanka. He also admitted that he had not disclosed the name of another patient who was sitting in the waiting area in his clinic on 04.10.2010 when complainant Anju had visited his clinic. He admitted that there was no attendant inside his cabin at the time when he examined Anju on 04.10.2010 and besides himself, complainant Anju and her three children no one else was present there. He denied the suggestion that as per his general medical procedure in order to detect and confirm a perforation in any patient's ear, a doctor needs to tilt the position of head of that patient into different positions to obtain clarity of view.
38.He admitted that he had not placed on record any document to show the amount of fees which the complainant was supposed to pay to him and one showing what amount was in actual paid by FIR No. 113/10 State Vs. Rohit Rajput 22 of 46 the complainant to him on 04.10.2010. He denied the other suggestions given by Ld. APP for State.
39.Final arguments have been heard and record have been carefully perused. Written arguments filed on behalf of the accused have also been perused.
APPRECIATION OF EVIDENCE AND LAW
40.Ld. defence counsel has lead various arguments which according to him are sufficient to create a doubt on the truthfulness of the present case. The arguments are being dealt with one by one here under.
41.The first limb of argument of Ld. Defence counsel is that the details of the incident as given by the complainant in her original complainant and as deposed by her in her testimony before the Court are not corroborative of each other and are rather contradictory. While in her original complaint which has been proved as Ex. PW1/A complainant Anju has given the version that while the accused was examining her right ear he had called her daughter Priyanka inside the cabin and she was made to stand on her back side which clearly implies that at that time Priyanka was seated outside the cabin in the waiting area. However, her version in her deposition before the Court is that she along with her both daughters were inside the cabin during her check up. She also deposed before the Court that during her check up, accused FIR No. 113/10 State Vs. Rohit Rajput 23 of 46 had called her daughter Priyanka on the pretext of showing her inside of the ear. However, this statement is absolutely missing in the original complaint Ex. PW1/A. Relying upon this contradiction in the original complaint and the deposition of the complainant, it is argued by Ld. Defence counsel that the complainant is not a trustworthy witness and has changed her version during the course of trial to suit her convenience. Ld. defence counsel has relied upon a Judgment of the Apex Court in case titled as "K. Lakshmana Rao Vs. State of Andhra Pradesh, 1979 AIR 1324" to stress upon the point that when completely a new case is made out by the informant while deposing before the Court as compared to her original complaint, her deposition should not be relied upon for conviction of the accused.
42.Per contra, it is submitted by Ld. APP for State that the contradictions as noted above and pointed out by Ld. Defence counsel are minor contradictions and not fatal to the case of the prosecution. The issue in dispute is not whether the victim Priyanka was called inside the cabin from outside by the accused or not. Infact it is an admitted case of the accused himself that the complainant along with her three children were inside the cabin during the examination of the ear of the complainant as is clear from h is statement recorded under section 313 Cr.P.C as well as FIR No. 113/10 State Vs. Rohit Rajput 24 of 46 his defence evidence. Even otherwise this contradiction is so minor that it cannot be said to have any bearing on the merits of the case.
43.Submissions heard in this regard. I do not find any merit in the arguments of Ld. Defence counsel that the contradictions as pointed out by him in the original complaint Ex. PW1/A and deposition of PW1 make the testimony of PW1 unreliable or coloured with doubt. The nondisclosure of the fact that the accused had called Priyanka to show her the inside of the ear of the complainant while examining the complainant in her original complaint Ex. PW1/A cannot be said to be a major concealment. It is a settled law that the original compliant on the basis of which an FIR is registered is only an intimation regarding the commission of an offence. Even if the said complaint is not detailed and the entire details are disclosed by the witness during his examination before the Court, it cannot be said to be an improvement unless it is absolutely contradictory to the original complaint. In these circumstances, I find no reason to distrust the testimony of PW1 solely on the basis of contradictions as noted above and pointed out by Ld. Defence counsel. This is more so as the presence of victim along with her mother inside the cabin of the accused at the time of the incident is in itself not in dispute being admitted by the accused.
FIR No. 113/10 State Vs. Rohit Rajput 25 of 46
44.I have also perused the Judgment of K. Lakshamana Rao, cited above relied upon by the defence. The said judgment is clearly not applicable to the instant case and is distinguishable on facts. This is because of the reason as in the said case several acts which constituted the offence u/s 354 IPC were not even mentioned in the first information report while the said facts were included later on at the time of deposition of the complainant which is not the case here.
45.The second limb of argument put forth by Ld. Defence counsel is that both PW1 as well as PW2 had actively suppressed in their examination in chief the exact number of persons who had visited the clinic of the accused on the date of the incident and were examined by him. It is argued that this active concealment is to hide the real bone of contention between the parties which was the demanding of fees for examination of three patients by the accused on the date of the incident. The complainant (PW1) has admitted in her crossexamination that her minor son had also accompanied her to the clinic of the accused on the date of the incident. However, PW2 has even gone a step further by denying the fact that his son had also accompanied PW1 to the clinic of the accused even in his crossexamination. PW1 has also admitted that even the ear of her son was examined by the accused on the date of the incident. However, she stated that it was done FIR No. 113/10 State Vs. Rohit Rajput 26 of 46 jokingly by the accused which is absolutely unbelievable considering the fact that the accused is a Professional person. Considering the concealments made by these two prosecution witnesses, it is absolutely clear that they have not disclosed entire truth before the Court and are trying to conceal certain important facts from the Court in order to hide the motive behind the false implication of the accused in the present case.
46.Per contra, it is argued by Ld. APP for State that no such concealment has been made by any of the prosecution witnesses from the Court. Complainant has no where stated, either in her original complaint Ex. PW1/A or in her examination in chief, that her son had not accompanied her to the clinic of the accused on the date of the incident. She is only silent on the said issue as she did not consider it to be relevant in the facts of the present case. The offence for which the accused has been charged pertains to victim Priyanka and not to the minor son of the complainant. Even if the factum of presence of his son was not disclosed by the complainant, it cannot be said to be fatal to the case of the prosecution. The trustworthiness of PW1 can also not be doubted on account of such nondisclosure as when specifically questioned about the presence of her son, she admitted the same and never tried to conceal the said fact from the court. Even the victim Priyanka had categorically admitted the presence of her FIR No. 113/10 State Vs. Rohit Rajput 27 of 46 brother and thus no malafide intention can be imputed on them in this regard. As regards the denial of PW2 regarding the presence of his minor son, it is immaterial as PW2 was admittedly not present and had not visited the clinic of the accused on the date of the incident. PW2 in his crossexamination has simply stated that his son had not visited the clinic as he was supposed to be in school which is till 1.30 p.m. His answer clearly shows that his denial regarding the presence of his son was on the basis of his estimation of the school timings of his son and not an active or intentional concealment.
47.Submissions heard in this regard. I do not find any merits in the argument of defence that the factum of presence of the minor son of the complainant at the clinic on the date of the incident has been actively concealed by the prosecution witnesses to hide the motive behind the false implication of the accused in the present case. My decision in this regard is supported by the own version of the defence as per which, the main reason for the dispute between the parties was charging of exorbitant fees by the accused and not charging of the fee for examination of the son of the complainant. When it is not the case of the accused that the quarrel / dispute between the parties was on account of charging of fees for the examination of son of the complainant, the argument that factum of presence of son of the complainant has FIR No. 113/10 State Vs. Rohit Rajput 28 of 46 been concealed to hide the motive of the false implication of the accused holds no water. The same, accordingly, do not inspire the confidence of the Court being misconceived.
48.The third limb of argument of Ld. Defence counsel is that a doubt is created on the truthfulness of the prosecution story because of the delay in lodging of the complaint. It is argued that the complaint has been lodged after about 12 hours of the alleged incident. The explanation given by the complainant regarding the delay is that her daughter Priyanka did not disclose the incident to her being ashamed and shocked. Complainant has deposed that she had observed that Priyanka was in a depressed mood and was complaining of headache after returning from the clinic. At about 10.00 pm Priyanka vomited and thereafter told her about the incident. However, these details are missing in the original complaint Ex. PW1/A where she has simply stated that at about 10.00 pm Priyanka informed her about the incident after gathering courage. The complainant has been duly crossexamined on the point and has also been confronted with her complaint Ex. PW1/A in this regard. This is again a clear improvement in the version of the complainant which again clouds her statement with doubt, the benefit of which should be given to the accused.
49.Per contra, it is argued by Ld. APP for State that even if the details of vomiting and depressed mood of Priyanka were not FIR No. 113/10 State Vs. Rohit Rajput 29 of 46 disclosed in the original complaint Ex. PW1/A, it is not fatal to the case of the prosecution as it does not form the essential ingredients of the offence for which the accused has been charged. As regards the delay in disclosing the incident by the victim to her mother, the said delay has been duly explained by the complainant (PW1) as well as Priyanka (PW3). Both these witnesses have stated that Priyanka was shocked and stunned because of the incident. She was disturbed and not able to react or disclose about the incident to any one immediately. This is a natural reaction of any lady when faced with such a situation. Priyanka was even in a more vulnerable position being a minor child aged merely 11 years. She was unable to comprehend what had happened with her and how she should react to the situation, which is absolutely justifiable. Even the Apex Court has appreciated the fact that in sexual offences delay in lodging of FIR can be due to a variety of reason particularly reluctance of the prosecutrix or family members to approach the police and lodge complaint about the incident which concerns the reputation and honour of the family and victim. Reliance in this regard has been placed upon the decision of the Apex Court in "State of Punjab Vs Gurmeet Singh 1996 AIR (SC) 1393". Relying upon the said judgment it is submitted that the delay in reporting of the present matter cannot be a reason to give benefit of doubt to the accused.
FIR No. 113/10 State Vs. Rohit Rajput 30 of 46
50.As observed earlier, an FIR / original complaint is merely an intimation of the commission of the offence and it is not necessary that each and every minute detail is incorporated in the said complaint. Thus, mere nonmentioning of the factum of vomiting and being depressed of Priyanka after the incident is not at all fatal to the case of the prosecution. I also do not find any merits in the argument of Ld. Defence counsel that there is a delay in lodging of filing of the present case which is fatal to the case of the prosecution. This is because of the reason that the matter has been reported in the night of the date of incident itself. It is not improbable or unacceptable that Priyanka, who was merely 11 years of age on the date of occurrence of the incident, was shocked and stunned by the same and thus, unable to react or inform her mother immediately after the incident as deposed by her. Both PW1 as well as PW3 had categorically deposed that Priyanka informed about the incident to PW1 after gathering courage at about 10.00 pm on the date of the incident. The matter was thereafter immediately reported to the police. Thus, this delay of about 12 hours in lodging of FIR which has been duly explained by the prosecution witnesses cannot be said to be fatal to the case of the prosecution.
51.Another limb of argument of Ld. Defence counsel is that in the factual matrix of the present case, the happening / occurrence of FIR No. 113/10 State Vs. Rohit Rajput 31 of 46 the incident is in itself highly improbable and impossible. It is the case of the prosecution that while the accused was examining the right ear of the complainant he had dragged the victim Priyanka who was standing within the viewing distance of the complainant and made her sit on his lap and touched her with the intention to outrage her modesty. It is also the case of the prosecution that on the misbehaviour of the accused, Priyanka had immediately reacted and stood up. Thereafter, again the accused caught hold of her from her waist, made her sit on his lap and misbehaved with her. All this had happened during the time when the accused was examining the right ear of the complainant. It is quite obvious that when a doctor is examining the ear of a patient the distance between the patient and a doctor is hardly about 23 inches. This fact has also been stated on oath by the accused himself who has been examined as DW1. It has also been duly proved on record by the deposition of the prosecution witnesses and the photographs (proved on record) that immediately in front of the seat of the complainant there was a mirror from which the complainant could see herself as well as what was going on behind her. In these circumstances, it is highly impossible that the incident as alleged by the prosecution could have occurred and had gone unnoticed by the complainant. This makes the case of the prosecution highly improbable. Moreover, the accused has FIR No. 113/10 State Vs. Rohit Rajput 32 of 46 relied upon Medical literature depicting the procedure for examination of the ear of a patient where both the hands are used for the purpose. PW1 on the other hand has been highly evasive when specifically asked in her crossexamination as to whether the accused was using both his hands while examining her ear. Her evasive replies are a clear indication that the version of the accused that both the hands of a doctor are occupied while examining a patient's ear is correct. This fact further adds to the impossibility of occurrence of the incident as reported. Accordingly relying upon the decision of the Guhawati Court in "Sadananda Borgohain Vs State of Assam" & Anr 1972 Criminal Law General 658, it is argued by Ld. defence counsel that there are inherent infermities in the case of the prosecution which makes the occurrence of the incident complained of highly improbable.
52.Per contra, it is argued by the Ld. APP for State that it was never the case of the prosecution that the accused had dragged Priyanka towards him while she was standing in a viewing distance of the complainant. Rather the case of the prosecution is that when the accused had diagnosed that the complainant was having perforation in her right ear and the complainant was not satisfied with his diagnosis, the accused, on the pretext of showing the inside of the ear of the complainant to Priyanka, had called her FIR No. 113/10 State Vs. Rohit Rajput 33 of 46 towards the back side of the complainant and thereafter made her sit on his lap and misbehaved with her at the back of the complainant. The accused who has examined himself as DW1 had himself admitted that he had diagnosed the complainant with perforation in her right ear and the complainant was not satisfied with his diagnosis. PW3 Priyanka who is the victim had categorically stated that the accused had called her towards the back side of her mother to show her the inside of the ear to her. This fact was also duly stated by her in her statement recorded under section 164 Cr.P.C which has been duly proved as Ex. PW3/A as well as in her statement recorded under section 161 Cr.P.C which has been proved as Ex. PW3/D1. The complainant who was an eye witness to this has also categorically deposed about this fact. The said fact is also duly mentioned in the complaint Ex. PW1/A. No suggestion whatsoever has been given by the defence either to PW1 or PW3 to the effect that Priyanka was not called by the accused on the pretext of showing her the inside of her mother's ear. Rather it has been suggested to PW1 that since her daughter was standing at her back when her ear was being checked, there cannot be any possibility of the incident in respect of which the complaint has been filed. This suggestion is a clear admission on the part of the accused that during the examination of the right ear of the complainant, Priyanka was on FIR No. 113/10 State Vs. Rohit Rajput 34 of 46 the back side of the complainant and near the accused. This admission clearly gives more probability to the case of the prosecution.
53.It is further argued by Ld. APP for State that although the accused has deposed that while he is examining his patients the distance between the patient and him is hardly 23 inches at all times. But that deposition is about an ideal situation when a doctor is examining his patient and is not specific to the present case. The accused has not stated on oath that while examining complainant, distance between him and Anju was hardly 23 inches. The medical literature relied upon by the accused also depicts the recommended procedure for ear examination. It nowhere says that it is impossible to examine the ear of a patient without the use of both the hands of the doctor. In the overall factual matrix of the case, it is not difficult to comprehend that the accused, during examination of right ear of the complainant Anju, while holding the instrument for examining the ear with his right hand had misbehaved with Priyanka after making her sit on his lap using his left hand. Thus, the argument of impossibility of occurrence of the incident of the defence is without any merit.
54.I have heard the submissions made and have given my thoughtful consideration to the facts of the present case. It is the case of the prosecution that victim Priyanka was called by the accused FIR No. 113/10 State Vs. Rohit Rajput 35 of 46 towards the back side of her mother Anju on the pretext of showing her the inside of the ear. This fact has been duly proved by the deposition of Anju (PW1) as well as Priyanka (PW3). There is also no contradiction in this regard either in the statement of Priyanka recorded u/s 161 Cr.P.C (PW3/D1) or in her statement recorded u/s 164 Cr.P.C (Ex. PW3/A). Moreover, there is no crossexamination of the prosecution witnesses on the said point. Thus, this fact has been duly proved on record that Priyanka was called by the accused towards the back side of her mother on the pretext of showing her the inside of her mother's ear. Accordingly, the arguments of Ld. Defence counsel that Priyanka was dragged in the presence of Anju and misbehaved with holds no water.
55.The second issue raised by Ld. Defence counsel is that there was a mirror exactly in front of Anju while she was being examined and accordingly, whatever was happening behind her back could have been easily seen by her in the mirror. In this regard, although it has been proved by the prosecution witnesses that there was a mirror exactly in front of the chair of the patient, however, the photograph Ex. P1 clearly shows that the height of the mirror is quite high when compared to the height of the chair on which admittedly the complainant was sitting during her examination. Considering the photograph Ex. P1 which has also been relied FIR No. 113/10 State Vs. Rohit Rajput 36 of 46 upon by the defence, it is highly difficult to presume that the patient who is sitting at position A4 marked in the photograph and getting her ear examined can see what is happening behind her in the mirror shown at points A1, A2 and A3. Moreover, the victim Priyanka had categorically denied in her crossexamination that while she was in the cabin of the accused she was within the viewing of her mother at all times. She had also stated that the mirrors in front of the chair of the patient where her mother was sitting were covered with posters. No suggestion has been given to PW3 that there were no posters on the mirrors in front of the chair on which her mother was sitting. It is an admitted case that the photographs Ex. P1 to Ex. P5 were taken, not on the date of incident but, on the next day i.e 05.10.2011 and accordingly the possibility for removal of posters at that time cannot be ruled out. Moreover, DW1 although has stated on oath that the mirror opposite the glass wall in between his cabin and the waiting area is so located that when he is examining the right ear of a patient, the patient is facing the mirror. However, there is no deposition to the effect that even while sitting on the chair and being examined, a patient can clearly see in the mirror as to what is happening behind her. In these circumstances, I find no reason to believe that there was no possibility of the incident going unnoticed by Anju because of the presence of mirrors just in front of her chair.
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56.Ld. Defence counsel has relied upon the medical literature as per which the recommended procedure of examination of a patient's ear is with the use of both the hands of a Doctor. However, PW3 who was an eye witness to the examination of her mother's ear has categorically denied in her crossexamination that the accused was using both his hands while examining the ear of PW1. She has specifically deposed that the instrument was well fitted in the ear and it was not moving and the accused was only using one of his hand i.e right hand for holding her ear and his other hand was free. The defence has not put any suggestion to PW3 regarding the use of both the hands by the accused during the examination of her mother's ear. Even the accused himself has not deposed that while examining Anju, he was using both his hands. It is a well known fact that the medical literatures show the ideal situations and procedures which should be followed while examining the patients. Merely because a literature shows that both hands should be used by the Doctor while examining a patient's ear cannot be said to be a proof of the fact that in the instant case the accused was infact using both his hands while examining the ear of PW1.
57.Similarly the accused has deposed that while he is examining his patients the distance between his chair and that of a patient is hardly about 12 inches. However, there is no deposition to the effect that in the instant case while he was examining PW1 Anju FIR No. 113/10 State Vs. Rohit Rajput 38 of 46 the distance between his chair and that of Anju was hardly 12 inches or that it was not possible for a third person to stand or sit in between them due to the shortage of space. In these circumstances, the argument of Ld. Defence counsel that due to the ideal practices, occurrence of the incident as reported was impossible does not inspire the confidence of the Court. It is not difficult to believe that the accused while examining PW1 Anju, holding instrument with his right hand, had made the victim Priyanka (PW3) sit on his lap and also misbehaved with her using his left hand which was free as deposed by PW3. Thus, I find no merit in the argument of defence regarding impossibility of occurrence of the incident as reported. Even the Judgment of "Sadananda Borgohain" (Cited above) is of no help to the defence as it is completely distinguishable on facts.
58.Ld. defence counsel has also argued that as per the admitted case of the prosecution witnesses the other two siblings of PW3 were sitting just in front of PW1 and thus, it is impossible that the incident could have gone unnoticed even by them.
59.This argument also does not inspire the confidence of the Court as according to the case of the prosecution the siblings of PW3 were less than seven years of age. such minor children cannot be expected to concentrate on their mother or what is happening behind her while she is being examined by a doctor. Considering FIR No. 113/10 State Vs. Rohit Rajput 39 of 46 their minor age it is also difficult to comprehend that they would have understood the misbehaviour of the accused and would have protested, even if they had observed the same. Moreover, the accused has never come out with this defence that whatever was happening with PW1 or PW3 was being closely observed by other two children.
60.It is the case of the defence that there was a dispute between the complainant Anju and the accused over the fees demanded by the accused as complainant felt that the said fees was exorbitant. It is argued by Ld. Defence counsel that this defence of the accused has been duly put to the prosecution witnesses in their cross examination, has been stated by the accused himself in his statement u/s 313 Cr.P.C and also has been duly proved by the accused by examining himself as DW1. Even PW3, in her cross examination, stated that her mother had softly asked the accused to reduce the fees a bit which request was politely declined by the accused. This further probablizes the story of the defence. It is a settled law that although the offence charged against the accused has to be proved beyond reasonable doubts, the defence of the accused has to be weighed on the scale of prepondrence of probabilities. It is submitted that since, from the overall evidence on record, the defence of the accused appears to be quite probable, he should be given the benefit of doubt and acquitted in the FIR No. 113/10 State Vs. Rohit Rajput 40 of 46 matter.
61.I do not find any merit in this argument of Ld. Defence counsel as even if weighed on the scale of preponderence of probabilities the defence of the accused does not appear to be probable. This is mainly because of the reason that whatever may have been the level of dispute between the complainant and the accused over the matter of fees, it is impossible to believe that a mother will make such a complaint regarding misbehaviour with her daughter merely to belittle someone. If the complainant had to take revenge from the accused, she could have alleged that such incident had occurred with her. There was no need of involving her minor daughter aged merely 11 years in the case. Moreover, if it was only a dispute over fees, it is beyond comprehension that husband of the complainant along with his family members would enter into a quarrel with the accused or abuse him on this minor issue. This is more so as the accused has himself stated that the complainant had left his clinic after making payment of the fees of Rs.600/ only i.e the reduced amount and not the full amount. Since the complainant had not given any exorbitant amount though demanded by the accused, it is difficult to believe that the complainant still, merely to teach the accused a lesson, went ahead to falsely implicate him with such allegations as contained in the present case.
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62.Ld. defence counsel has also argued that the complainant (PW1) has been completely evasive when questioned about the fees demand by the accused on the date of incident and that paid by her. She has admitted in her crossexamination that she had visited the clinic of the accused 23 times earlier. Her financial status is also depicted from the fact that mode of conveyance used by her for going to the clinic of the accused was a cyclerickshaw. Thus, it cannot be presumed that she was of such a financial stature that she was unconcerned about the fees of the accused. Accordingly it is absolutely clear that she had evaded giving the reply to the questions regarding the fees demand by the accused on the date of incident as she wanted to conceal the real dispute between the parties.
63.Perusal of crossexamination of PW1 clearly shows that she had specifically stated that the fees of the accused was Rs.400/ per patient when questioned about the same in her crossexamination. She has also admitted that she had earlier also visited the clinic of the accused 23 times. This gives a clear indication that she was well aware about the fees which was expected from her even before visiting the clinic of the accused. In these circumstances, the defence of the accused that he has been falsely implicated in the present case because of the dispute between him and the complainant over the charging of the fees as the complainant felt FIR No. 113/10 State Vs. Rohit Rajput 42 of 46 that the fees is exorbitant becomes all the more improbable.
64.Ld. defence counsel has also submitted that the IO/SI Ram Gopal has admitted receiving a PCR call made by the accused prior to filing of the present complaint. Still he had admittedly made no investigation or enquiry on the same. This clearly shows that the investigation made by him was shoddy and solely to benefit the complainant. The benefit of this defect in investigation should also be given to the accused.
65.Per contra, it is argued by Ld. APP for State that even if the investigation has been proved to be faulty, it cannot be a sufficient ground to ignore the case of the victim and her deposition before the Court. If the accused was aggrieved by the faulty investigation, he could have filed a complaint regarding the same. However, he, despite being an educated person, preferred not to take any action against the IO and had not preferred any complaint against him. This clearly shows that the defence of faulty investigation is merely an after thought in order to defeat the genuine case of the complainant.
66.The accused has no where explained as to how the faulty investigation has led to his false implication in the present case. Merely because the accused states that no action was taken on his PCR call, it is not sufficient to doubt the case of the prosecution. It is also not in dispute that the accused has not taken any action FIR No. 113/10 State Vs. Rohit Rajput 43 of 46 against the in action of the IO on his PCR call. No effort was made by him even to prove his PCR call on record or to find out as to what action was taken thereon. In these circumstances the defence of faulty investigation as taken by the accused does not inspire the confidence of the Court and is of no support to the accused.
67.The victim PW3 who has been subjected to lengthy cross examination has nowhere faltered regarding the incident. She has categorically deposed that the accused had misbehaved with her by touching her on her private parts and on her back after making her sit on his lap. She has beautifully stood the test of cross examination. I find no reason to doubt her testimony. As discussed above the defence of the accused does not appear to be probable enough to create a doubt on the case of the prosecution.
68.In addition to this it is pertinent to mention that as per the own case of the accused his assistant and one patient were present in the waiting area while the dispute over fees had taken place with the complainant and the complainant had threatened to teach him a lesson. Still no effort has been made by the accused to examine any of these persons as a witness to the said dispute which could have supported his case. It is again his case that husband of the complainant along with 1015 persons had come to his house at about 11.00 pm and fought with him over the issue of charging FIR No. 113/10 State Vs. Rohit Rajput 44 of 46 exorbitant fees from his wife. His neighbours and secretary of RWA were a witness to this dispute. As per his own case the secretary of his RWA had called the police telephonically. Still none of these public witnesses have been examined by the accused in support of his case for reasons best known to him. This makes his defence unreliable and in sufficient to create a doubt on the case of the prosecution.
69.I have no reason to believe that PW3 victim Priyanka is a tutored witness or that the accused has been falsely implicated in the present case by the complainant on a minor issue of dispute over fees.
70.None of the contentions / arguments raised on behalf of the accused and as discussed herein above have been found meritorious enough to discard the entire prosecution case or even to leave a dent thereon.
CONCLUSION
71.In view of the reasons and findings given above, I have no hesitation in holding that the defence has miserably failed to create a doubt on the case of the prosecution. The prosecution witnesses have duly proved the commission of offence u/s 354 IPC as charged against the accused, beyond reasonable doubt. Defence has failed to shake the veracity of the prosecution witnesses. Thus, considering the overall evidence on record, FIR No. 113/10 State Vs. Rohit Rajput 45 of 46 accused is convicted for the offence u/s 354 IPC as charged against him.
72.Be heard on the point of sentence separately.
73.Copy of the judgment be given free of cost to all the accused persons.
ANNOUNCED IN THE OPEN COURT (SHIVALI SHARMA )
TODAY ON 15.01.2013 Metropolitan Magistrate,
Mahila Court/West/Delhi
FIR No. 113/10 State Vs. Rohit Rajput 46 of 46