Delhi District Court
State vs . Rohtash Kumar Gautam Page No. 1/18 on 3 February, 2016
IN THE COURT OF SHRI SANJIV JAIN,
ADDITIONAL SESSIONS JUDGE SPECIAL. FAST TRACK
COURT : SAKET COURTS: NEW DELHI.
Unique Case ID No. 02406R0096982014
SC No. : 86/14
FIR No. : 177/14
U/s. : 328/376/384 IPC
PS : Badarpur, New Delhi.
State (Govt. of NCT of Delhi)
................... Complainant
Versus
Rohtash Kumar Gautam
S/o Shyam Singh
R/o H. No. 94 AIG Camp, 2 Temur Nagar,
New Friends Colony, New Delhi. .........................Accused
Date of Institution : 29.04.2014
Judgment reserved for orders on : 03.02.2016
Date of pronouncement : 03.02.2016
J U D G M E N T
1. On 26.03.2014 the prosecutrix ( name withheld to protect her identity) came at the police station Badarpur and gave a written complaint against the accused interalia that in January, 2012, she joined as Compounder in the clinic of the accused on a monthly FIR No. : 177/14 PS : Badarpur State Vs. Rohtash Kumar Gautam Page No. 1/18 salary of Rs.10,000/. After three months, one day she had high fever and headache, accused gave her some medicine and on consuming the same, she started feeling giddiness. On the asking of the accused, she lied down for sometime and became unconscious. When she regained her consciousness, she found her shirt buttons and pant zip open. She was feeling pain in her stomach. She found bleeding from her genital. When she asked the accused, he started laughing, showed her obscene video and threatened to make her video public on internet and defame her in the society. She alleged that thereafter the accused continued to commit rape upon her threatening her to make her obscene video public. She alleged that after becoming depressed, she left the job in November, 2012 but the accused continued threatening her by calling her from unknown numbers. She alleged that two months ago, the accused called her at his shop at Taimur Nagar and committed rape upon her by threatening her to upload her video on internet. Due to fear, she did not make any complaint against the accused. After mustering courage, she told the incident to her friend with whom she came to the police to lodge complaint.
On this complaint, the case vide FIR No. 177/14 u/s 376/506 IPC was registered. The prosecutrix was taken to AIIMS for her medical examination. The accused was arrested. He was got medically examined. The statement of the prosecutrix u/s 164 CrPC FIR No. : 177/14 PS : Badarpur State Vs. Rohtash Kumar Gautam Page No. 2/18 was got recorded. After the investigation, the accused was sent for trial for the offences punishable under section 376/328/384/506 IPC.
2. After complying with the requirements contemplated under section 207 CrPC, the case was committed to this Court.
3. Prima facie case was made out vide order dated 05.05.2014 and the charge was framed against the accused for the offences punishable under section 328/376 & 384 IPC to which he pleaded not guilty and claimed trial.
4. To substantiate its case, prosecution examined as many as eleven witnesses.
PW 1 W Ct Shashi had taken the prosecutrix to AIIMS where she was medically examined vide MLC Ex. PW1/A. PW 2 is the prosecutrix. I will discuss her testimony at the time of appreciation of evidence. PW 3 Ct Radhey Shyam had taken the accused to AIIMS for his medical examination qua his potency where he was examined vide MLC Ex. PW 3/A. He collected the blood in gauze of the accused in sealed condition alongwith the sample seal.
PW 4 Bundan Baksh was the owner of premises FIR No. : 177/14 PS : Badarpur State Vs. Rohtash Kumar Gautam Page No. 3/18 at Tajpur Pahadi, Badarpur where the accused lived as tenant for ten days in the year 2012 on a monthly rent of Rs.1500/. He stated that no document qua tenancy was executed.
PW 5 Ms Anu Agarwal recorded the statement of prosecutrix Ex. PW 5/B u/s 164 CrPC vide application Ex. PW 5/A. PW 6 Dr Prashashti proved the MLC of the prosecutrix Ex. PW 1/A prepared by Dr. Nipun who also recorded the history on the MLC given by the prosecutrix.
PW 7 ASI Laxman Prasad recorded the FIR Ex. PW 7/A and issued the certificate u/s 65B of the Evidence Act Ex. PW7/C. PW 8 Lalit was the owner of premises at Taimur Nagar where the accused lived as tenant for one and half years in the year 2013 on a monthly rent of Rs.2500/. He stated that accused had been running a clinic. He stated that he never visited the clinic of the accused but admitted that he used to live in the same building.
PW 9 Ms. Sarita was the friend of the FIR No. : 177/14 PS : Badarpur State Vs. Rohtash Kumar Gautam Page No. 4/18 prosecutrix. She stated that prosecutrix had been living with her at Madan Pur Khadar in the year 2014. She was doing the work of patient care in the dispensary of the accused. She stated that sometime in March, 2014, she found the prosecutrix tense. On enquiry, she told her that the accused withheld her salary for 4/5 months. She stated that she did not tell her anything about rape or obscene video clipping. She then took the prosecutrix to the police station where she was asked to write a complaint. She stated that she was not present when the prosecutrix wrote the complaint.
She was declared hostile by the prosecution. On being crossexamined by the Public Prosecutor, she denied that on 26.03.2014, when she inquired from the prosecutrix, she told her that accused has ruined her life and in March 2012, he had committed rape upon her after making her consume some intoxicated medicine; that the accused made her obscene video; and that he used to threaten her that if she would disclose FIR No. : 177/14 PS : Badarpur State Vs. Rohtash Kumar Gautam Page No. 5/18 the incident to anyone, he would upload the video on internet. She denied that the prosecutrix had written her complaint Ex. PW 2/A in her presence mentioning the true account of the incident. She stated that she had accompanied the prosecutrix for her medical examination but she denied that prosecutrix had told the brief history of incident to the examining doctor.
PW 10 SI Sarita Rathi was the investigating officer of the case. She deposed on the lines of the investigation. On receipt of complaint, she sent the prosecutrix to AIIMS and registered the case. She prepared the site plan Ex. PW 10/B and C, arrested the accused vide arrest memo Ex. PW 2/B and got him medically examined. She got recorded the statement of prosecutrix u/s 164 CrPC. She also seized the mobile phone of the accused vide memo Ex. PW 10/E and recorded the disclosure statement of the accused Ex. PW 10/F. She admitted that the prosecutrix had told her that accused did not pay her salary for few months.
FIR No. : 177/14 PS : Badarpur State Vs. Rohtash Kumar Gautam Page No. 6/18 PW 6 Dr. Asit Kumar Sikary proved the MLC of accused Ex. PW 3/A prepared by Dr. Mayank Jain who has left the services of the hospital. He stated that as per the MLC, there was nothing to suggest that accused was not capable of performing sexual intercourse under normal circumstances.
5. After the prosecution evidence, statement of the accused under section 313 CrPC was recorded. He denied all the incriminating evidence against him and stated that the prosecutrix had worked with him for three months. She wanted him to increase her salary and when he denied, she blackmailed him. He stated that he did not make any physical relation with the prosecutrix.
6. In defence, the accused did not examine any witness.
7. I have heard the arguments advanced by Sh. Salman Hashmi, Ld. counsel for the accused and Ld. Addl. PP for the State.
8. Ld. counsel for the accused vehemently argued that the first incident is of March 2012 but the complaint was lodged on 26.03.2014 i.e. after about two years. There was no recovery of any obscene photograph / video of the prosecutrix. Ld. counsel stated that the prosecutrix had first aid knowledge and she was not a trained nurse. She worked in the clinic of accused for three months. The FIR No. : 177/14 PS : Badarpur State Vs. Rohtash Kumar Gautam Page No. 7/18 dispute was over the payment of her salary. Ld. Counsel stated that testimony of the prosecutrix is inconsistent. There are inherent improbabilities and contradictions and her testimony can not be said to be of sterling quality to base conviction of the accused.
9. Ld. Addl. PP on the contrary argued that it is true that the first incident was of March 2012 but in the complaint, the prosecutrix has specifically alleged that the accused had prepared her obscene video at that time and on that pretext, he blackmailed her and got sexual favours from her. One day she told her friend Sarika who took her to the police station where she made the complaint. Ld. Addl. PP argued that the delay in this case is not fatal as no unmarried girl would like to be exposed like this. Ld. Addl. PP further argued that the chances of deleting the videos / photographs by the accused when his mobile was seized can not be ruled out. Ld. Addl. PP stated that the prosecutrix reiterated the facts alleged in the complaint in her statement recorded u/s 164 Cr.P.C. and when she was medically examined. Ld. Addl. PP stated that when the examinationinchief of prosecutrix was recorded on 10.07.2014, she deposed on the lines of complaint. Her further examination was deferred for want of mobile and thereafter, she was examined on 28.05.2015. So the possibility of winning over the prosecutrix and Sarika can not be ruled out. Ld. Addl. PP stated that the evidence recorded on 10.07.2014 may be FIR No. : 177/14 PS : Badarpur State Vs. Rohtash Kumar Gautam Page No. 8/18 considered which is sufficient to base conviction of the accused.
10. I have considered the submissions and gone through the entire material on record.
11. Section 375 defines rape. It reads as:
"Rape A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: First: Against her will.
Secondly: Without her consent.
Thirdly: With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly: With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly:With her consent, when, at time of giving such consent, by administration of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly: With or without her consent, when she is under sixteen years of age.
FIR No. : 177/14 PS : Badarpur State Vs. Rohtash Kumar Gautam Page No. 9/18 Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception: Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape."
12. The essence of rape is absence of consent. Consent means an intelligent, positive concurrence of the woman. A woman is said to consent, only when she freely agrees to submit herself, while in free and unconstrained possession of her physical or moral power to act in a manner she wanted. Submissions under the influence of fear or terror or false promise is not consent.
13. In the complaint Ex.PW2/A, the prosecutrix has alleged that she used to live with her friend Sarika on rent. In January 2012, she joined as Compounder in the clinic of accused on a salary of Rs. 10,000/ p.m. In March 2012, she complained of high fever and headache. Accused gave her medicine. She started feeling giddy and became unconscious. When she regained consciousness, she found her shirt button and zip of her pant open. She also felt pain and bleeding from her vagina. When she confronted him, he showed her obscene video on his mobile and threatened to defame her if she disclosed it to anyone. He thereafter started blackmailing her. He sexually exploited her number of times. She left the job in November FIR No. : 177/14 PS : Badarpur State Vs. Rohtash Kumar Gautam Page No. 10/18 2012. However, the accused continued making calls on her mobile. About two months before 26.03.2014, he called her in his clinic and again committed sexual intercourse with her forcibly. She was scared. She told the incident to her friend who brought her in the police station. Investigation revealed that she was medically examined vide MLC Ex.PW1/A on 26.03.2014 where she alleged to the doctor that she was raped for four years after being blackmailed. She narrated what she alleged in her complaint Ex.PW2/A.
14. Her statement u/s 164 Cr.P.C. Ex.PW5/D was recorded where also she stated on the lines of her compliant. She stated that in August 2012, she joined another job and did not meet the accused till November 2012. She requested the accused many times to delete the video but he instead blackmailed her. She also stated certain facts which were not the part of the complaint i.e. the accused had asked her to marry and give birth to a child and that he would keep her separately.
15. The prosecutrix was examined as PW2. She testified on oath that she had worked with the accused as Compounder from January 2012 to November 2012. On one day in March 2012, she was not feeling well. Accused gave her medicine. She started feeling giddy. Accused asked her to lie down and take rest. When she woke up, she found button of her shirt and zip of her pant open. She was bleeding FIR No. : 177/14 PS : Badarpur State Vs. Rohtash Kumar Gautam Page No. 11/18 from her genital. She was feeling pain in her abdomen. When she asked the accused what he did with her, he started laughing. An altercation ensued and accused gave her beatings. He also showed her obscene video on his mobile. He threatened her to upload the video on net. She did not make the complaint as she got scared. She stated that the accused used to threaten her, call in his shop / clinic and commit rape with her. Her examination was deferred for want of mobile on 10.07.2014.
16. It is noteworthy that despite service, the prosecutrix did not appear on 20.01.2015. She appeared on 28.05.2015 and took a somersault and stated that she had made the complaint against the accused as he was not paying her salary and closed his clinic. The police had asked her to write a complaint so that they may compel the accused to pay her salary. She stated that the allegations made in the complaint are not true and nothing of that sort happened with her and alleged these facts at the instance of the police. She stated that she did not say anything to the doctor when she was examined vide MLC Ex.PW1/C. She stated that the doctor had asked the police about this case. She stated that when she made the statement before the Magistrate Ex.PW1/B, she was confused as the police had asked her to repeat what was alleged in the complaint Ex.PW2/A. She stated that police had told her that the accused would pay her salary after FIR No. : 177/14 PS : Badarpur State Vs. Rohtash Kumar Gautam Page No. 12/18 his arrest. She also denied having pointed out the place of incident to the police.
17. She was declared hostile by the public prosecutor and cross examined at length. She denied that the statement given by her on 10.07.2014 was the correct account of incident happened with her and now she has been won over by the accused. She repeatedly stated that the accused did not do anything wrong with her much less rape. She also admitted that the accused did not show her obscene video nor threatened her to upload it on the net.
18. PW9 who is the friend of the prosecutrix has stated that in march 2014, she found the prosecutrix tense. She (prosecutrix) told her that the accused withheld her salary of 4 / 5 months. She stated that the prosecutrix did not tell her that the accused had done wrong with her or taken her obscene video clippings. She stated that she took her to the police station where NGO was called. The police had asked the prosecutrix to write a complaint with regard to the said fact. She was also declared hostile by the prosecution but she did not support the prosecution story in any manner. She stated that she was sitting outside the room of the hospital when the prosecutrix was examined by the doctor.
19. In the instant case, the IO / PW10 has admitted that the prosecutrix had told her that she had worked in the clinic of the FIR No. : 177/14 PS : Badarpur State Vs. Rohtash Kumar Gautam Page No. 13/18 accused and her salary for few months was not paid by him. It is relevant to note that the IO had seized the mobile phone of the accused with which the accused had allegedly made her obscene videos. The said mobile was played before me. It is not found containing any obscene photograph / video of the prosecutrix / complainant. It was also stated by PW10 / IO that she had also checked the mobile phone of the accused and there was no obscene / photograph of the prosecutrix.
20. It is to be noted that the first incident allegedly happened in March 2012. Strangely even then she continued working in the clinic of the accused and worked till November 2012 although in her statement u/s 164 Cr.P.C, she has stated that she had worked in the clinic of the accused till August 2012. The prosecutrix has alleged that the accused used to blackmail her, threaten her and commit sexual intercourse with her. It is relevant to mention that in the instant case, the report was lodged in March 2014 i.e. after about two years. The reasons given by the prosecutrix / prosecution that since the accused used to threaten and blackmail her to upload her video on net, she did not lodge the report for two years, do not inspire confidence. She even did not tell the incident to her room partner Sarika / PW9 who in clear terms has stated that in March 2014, the prosecutrix had told her that the accused has withheld her salary for 4 FIR No. : 177/14 PS : Badarpur State Vs. Rohtash Kumar Gautam Page No. 14/18
- 5 months. She did not say that any wrong was done by the accused on her or her obscene video was prepared by the accused. The prosecutrix affirmed this fact when she was further examined and crossexamined. She has categorically stated that she had made the complaint since the accused was not paying her salary and closed his clinic. It was the police who advised her to write the complaint in such a manner so that the accused could be compelled to pay her salary. She denied having happened such an incident of sexual assault with her. She has stated that she did not give any history to the doctor nor the doctor made any inquiry from her. Since she was confused, so under the guidance of the police, she repeated the allegations in her statement u/s 164 Cr.P.C. Ex.PW5/B. She has stated that the statement given by her on 10.07.2014 was not the correct account of incident happened with her.
21. The inconsistency and infirmity coming in the testimony of the prosecutrix makes her testimony unreliable and unworthy of credence. It does not find support from PW9 and the material seized during investigation. It is also relevant to quote the submissions made by the IO on 03.02.2016 that at the time of seizure of mobile, she had checked it but she did not find any photograph / video in that mobile and for that reason, she did not send it to the FSL. The logical conclusion which can be drawn in this case is that there was dispute FIR No. : 177/14 PS : Badarpur State Vs. Rohtash Kumar Gautam Page No. 15/18 over payment of salary and when the accused did not pay her salary, which was due for months, she lodged the complaint which fact she has also admitted in her testimony.
22. As regards the submissions that the part of the evidence of the prosecutrix recorded on 10.07.2014 be considered, it is relevant to mention that her examination was not completed on that day. Many documents were put on 28.05.2015 when she appeared on the next date for evidence i.e. complaint Ex.PW2/A, MLC Ex.PW1/A and her statement u/s 164 Cr.P.C. Ex.PW5/A. She had given specific answers that she had made the complaint on the narration of the police. Her grievance was that the accused had not paid her salary and he closed his clinic.
23. I am conscious of the legal proposition that the conviction in such like cases can be made on the sole testimony of the prosecutrix even without any medical corroboration and the version of the victim in rape commands great respect and acceptability but if there are some circumstances which cast doubt in the mind of the court of the veracity of the victim's evidence then it is not safe to rely on the uncorroborated version of the victim of rape. It was held in case of Rajoo Vs. State of MP, AIR, 2009 SC 858 : "It cannot be lost sight that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and FIR No. : 177/14 PS : Badarpur State Vs. Rohtash Kumar Gautam Page No. 16/18 damage to the accused as well. The accused must also be protected against the possibility of false implication".
24. In the case of Narender Kumar Vs. State, (2012) 7 SCC 171, it was held that even in a case of rape, the onus is always on the prosecution to prove affirmatively each ingredients of the offence. Such onus never shifts. The prosecution case has to stand on its own leg and cannot take support from weakness of the case of defence. However, the great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence.
25. In Ashish Batham Vs. State of MP, (2002), 7 SCC 317), it was held :
"Realities or Truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however, strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime FIR No. : 177/14 PS : Badarpur State Vs. Rohtash Kumar Gautam Page No. 17/18 and grave the charge is greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between `may be true' and `must be true' and this basic and golden rule only helps to maintain the vital distinction between `conjectures' and `sure conclusions' to be arrived at on the touch stone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record"
Conclusion
26. In the light of what has been stated above, I am of the view that the prosecution has failed to prove its case against the accused beyond reasonable doubt. I therefore, acquit the accused of the offences punishable under section 328/376 and 384 IPC giving him benefit of doubt. His bail bond be cancelled. His surety be discharged. He is, however, directed to furnish bail bond in the sum of Rs. 10,000/ with one surety in the like amount, in compliance of section 437A Cr.P.C. The mobile be returned to the accused after the expiry of period of appeal or revision.
27. File be consigned to the Record Room.
Announced in the open court today i.e. 03.02.2016 ( Sanjiv Jain) ASJSpl. FTC / Saket Courts New Delhi.
FIR No. : 177/14 PS : Badarpur State Vs. Rohtash Kumar Gautam Page No. 18/18