Delhi District Court
State vs . Kamlesh Ojha on 18 December, 2014
FIR No. 335/08; U/s 313/325 IPC; P.S. Prashant Vihar D.O.D.18.12.2014 IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS JUDGE04 (NORTH): ROHINI COURTS: DELHI Session Case No. 35/1/14 Unique Case ID No. 02404R033262010 State Vs. Kamlesh Ojha S/o Sh. Lalji Ojha R/o 22C93, Kaushalpuri, Lal Bagh, Azadpur, Delhi. FIR No. : 335/08 Police Station : Prashant Vihar Under Sections : 313/325 IPC Date of committal to Sessions Court: 11.07.2011 Date on which judgment was reserved: 18.12.2014 Date on which Judgment pronounced: 18.12.2014 JUDGMENT
BRIEF FACTS OF THE CASE:
1. The facts and circumstances as born out from the record are as under:
(i) That on 11.05.08, intimation was received in PP Sector 16, Rohini of PS Prashant Vihar vide DD no. 13PP on which ASI Bal Kishan reached Satyam Hospital situated at Sector 16, Rohini where he obtained MLC of injured Suman Ojha;
(ii) ASI Bal Kishan asked injured Suman Ojha to give statement but she expressed inability to make statement due to which DD no. 13PP was kept State V/s Kamlesh Ojha (" Acquitted") Page 1 of 25 FIR No. 335/08; U/s 313/325 IPC; P.S. Prashant Vihar D.O.D.18.12.2014 pending;
(iii) That on 03.06.08, complainant Ms. Suman Ojha visited PP Sector 16 of PS Prashant Vihar and gave statement wherein she alleged that her husband Madhu Sudan had expired on 16.05.07 in an accident and she was having one child i.e son aged about four years out of the said wedlock. On 09.03.08, she was married with her brother in law namely Kamlesh Ojha i.e accused herein with the consent of family members. The accused used to consume liquor and used to abuse her and also used to give beatings to her. House no. G9/19 was registered in her name and accused used to force her to transfer the said house in his name. On 10.05.08 at about 9.00 P.M, the accused gave beatings with fist and kick blows under the influence of liquor to her as a result of which she had to be aborted as she was having pregnancy of two months. At that time, the accused had claimed that since she refused to transfer the house in his name, he would kill the embryo and gave kick blow in her stomach and left the house at about 11.00 P.M. She remained under constant pain throughout the night and went to Satyam Hospital in the next morning. She was discharged from the hospital on 13.05.08 but since her bleeding did not stop, she again got admitted in the said hospital on 15.05.08 and ultimately, she was told by concerned doctor on 15.05.08 that there had been miscarriage.
(iv) On the basis of said statement, FIR in question came to be registered for offence U/s 313 IPC and investigation was entrusted to ASI Bal Kishan.
(v) It is alleged that accused was arrested during the course of State V/s Kamlesh Ojha (" Acquitted") Page 2 of 25 FIR No. 335/08; U/s 313/325 IPC; P.S. Prashant Vihar D.O.D.18.12.2014 investigation.
(vi) During the course of investigation, it was revealed that abortion of complainant Ms. Suman Ojha had taken place on 23.05.08 and not on 15.05.08. The relevant medical record including report of ultrasound was collected and statement of complainant was recorded in this regard wherein she claimed that due to immense pressure, she had disclosed the date of abortion as 15.05.08 instead of 23.05.08.
(vii) During the course of investigation, ACP concerned also made written request for giving opinion on certain points and ultimately, written reply on those points was received from the hospital.
(viii) During the course of investigation, IO recorded statements U/s 161 Cr.PC of the witnesses and after completion of investigation, chargesheet had been filed before the Court.
2. After compliance of section 207 Cr.P.C., the case was committed to the Court of Sessions and was assigned to Ld. Predecessor of this Court.
CHARGE FRAMED AGAINST THE ACCUSED
3. After hearing arguments on the point of charge, Ld. Predecessor of this Court was pleased to frame the charge u/s 325/313 IPC against the accused vide order dated 30.04.12 to which accused pleaded not guilty and claimed trial.
4. In support of its case, prosecution examined nine witnesses namely PW1 Sh Vijay Garg, PW2 Ms. Suman, PW3 Dr. Sanjeev Aggarwal, PW4 Ct. Ram Sewak, PW5 HC Dharambir, PW6 Dr. Soni, PW7 HC Rohtash, PW8 Ct. Ganga Swaroop and PW9 Retd. SI Bal Kishan till 25.11.14. State V/s Kamlesh Ojha (" Acquitted") Page 3 of 25 FIR No. 335/08; U/s 313/325 IPC; P.S. Prashant Vihar D.O.D.18.12.2014
5. Thereafter, statement U/s 313 Cr.P.C. of accused was recorded during which all the incriminating evidence were put to him. However, he denied the same and claimed that he is innocent and has been falsely implicated in this case. His defence is of general denial. Accused did not opt to lead any evidence towards his defence.
6. I have heard Sh. Ashok Kumar, Ld. Substitute Additional Public Prosecutor on behalf of State and Ld. Counsel Sh. Ashwin Vaish, Adv. on behalf of accused Kamlesh Ojha. I have also gone through the material available on record.
7. Before discussing the rival submissions made on behalf of both the sides, it would be appropriate to discuss, in brief, the testimonies of prosecution witnesses which have come on record. The said testimonies are detailed as under: PUBLIC WITNESSES
8. PW1 Sh. Vijay Garg: This witness was the employer of previous husband of complainant Ms. Suman Ojha. He deposed that Madhusudan Ojha used to work in his company namely PRL Projects & Infrastructure Ltd as Manager and had expired in road accident leaving behind one son and widow namely Ms. Suman Ojha. He further deposed that after death of Madhusudan Ojha, Suman Ojha had married with her devar approximately four years ago. Ms. Suman Ojha had called him and requested to provide a car with driver as her condition was not well and she had to go to hospital on which he sent his car with driver namely Sh Krishan Avtar Joshi.
In his cross examination, he claimed to have received the State V/s Kamlesh Ojha (" Acquitted") Page 4 of 25 FIR No. 335/08; U/s 313/325 IPC; P.S. Prashant Vihar D.O.D.18.12.2014 telephone call at about 8.00/9.00 P.M. Ms. Suman Ojha used to visit in his office for financial help from staff members but he was not knowing as to whether she was doing any job or not.
9. PW2 Suman: She is the complainant in this case. She deposed that she was having one son namely Aditya Ojha out of her first marriage with Madhusudan Ojha who expired in road accident on 15.05.2007. She started living with her Devar namely Kamlesh Ojha i.e accused herein, as husband and wife from February 2008 and entered into marriage on 09.03.2008 in one temple with the consent of their family members.
She further deposed that accused used to give beatings to her and also used to consume liquor. On 10.05.08, accused tried to strangulate her son Aditya but she rescued her son. The accused came to the house on 10.05.2008 in heavily drunken condition and started beating her by asking her to transfer House no. G9/21, Sector 16, Rohini in his name. He gave merciless beatings to her on her head and abdomen due to which bleeding started. She was having pregnancy of about two months at that time. The said incident had happened at about 10.00 P.M. She remained in severe pain due to said beatings on which she made call to employer Sh Vijay Garg for sending vehicle. In the next morning at about 6/7 A.M, she went to Satyam Hospital in the vehicle sent by said Vijay Garg, where she remained admitted for two days. She again got admitted in the said hospital for some days and her pregnancy was aborted on 23.05.08 due to the beatings given by accused. The police had recorded her statement Ex PW2/A and due to depression, she State V/s Kamlesh Ojha (" Acquitted") Page 5 of 25 FIR No. 335/08; U/s 313/325 IPC; P.S. Prashant Vihar D.O.D.18.12.2014 had mentioned the date of miscarriage as 15.05.08 at that time.
She further deposed that accused was arrested on her identification, vide memo Ex PW2/B. She also produced original discharge card dt. 13.05.08 mark PW2/A of Satyam Hospital.
She further deposed that accused had also given beatings to her on previous occasion on 10.03.08 for which she was treated in Satyam Hospital and was discharged on the same day. She also produced Discharge Card in this regard and exhibited copy thereof as mark PW2/B. She further deposed that she is still under depression and was undergoing treatment at Maharaja Agarsain Hospital. She produced original discharge summary of Maharaja Agarsain Hospital in this regard and exhibited copy thereof as mark PW2/C. She has been cross examined at length on behalf of accused on several dates.
POLICE WITNESSES:
10. PW4 Ct. Ram Sewak: He is the formal witness who accompanied ASI Bal Kishan to Satyam Hospital on 11.05.08 on receipt of DD no. 13.
He deposed that IO had collected MLC of injured Ms. Suman Ojha in Satyam Hospital but complainant did not give her statement at that time on the ground that she was not feeling well.
In his cross examination, he deposed that they had visited Satyam Hospital at about 9.00 A.M. He could not disclose the room number in which State V/s Kamlesh Ojha (" Acquitted") Page 6 of 25 FIR No. 335/08; U/s 313/325 IPC; P.S. Prashant Vihar D.O.D.18.12.2014 patient was admitted in Satyam Hospital. No person was found present inside the said room except patient Suman Ojha and the hospital staff. He deposed that ASI Bal Kishan was already knowing the room number in which the patient was admitted. He could not disclose as to whether IO had made any DD entry in police post to the effect that complainant did not give any statement at that time.
11. PW5 HC Dharambir: He is the formal witness who had recorded DD no. 13 in PP Sector16 Rohini of PS Prashant Vihar on 11.05.08 at about 8.55 A.M. He proved copy of said DD entry as Ex PW5/A. This witness has not been cross examined by accused despite grant of opportunity.
12. PW7 HC Rohtash: He is the Duty Officer who proved factum regarding recording of FIR No. 335/08 U/s 313 IPC in PS Prashant Vihar. He proved copy of said FIR as Ex.PW7/A and his endorsement as Ex.PW7/B made on the rukka.
Nothing material has come on record during cross examination of this witness.
13. PW8 Ct. Ganga Swaroop: This witness deposed that on 03.06.08, complainant Suman Ojha visited PP Sector 16 Rohini and made statement before ASI Bal Kishan. Thereafter, ASI Bal Kishan made endorsement on the said rukka and prepared rukka and handed over to him for registration of FIR. Accordingly, he got the FIR registered and handed over copy thereof to ASI Bal Kishan for investigation.
State V/s Kamlesh Ojha (" Acquitted") Page 7 of 25 FIR No. 335/08; U/s 313/325 IPC; P.S. Prashant Vihar D.O.D.18.12.2014 He further deposed that he had accompanied IO ASI Bal Kishan to the house no. G9/21, Sector 16, Rohini, Delhi where complainant Suman Ojha joined them and thereafter, they went to the house of accused where he was arrested on the identification of complainant, vide memo Ex. PW2/B and his personal search was conducted vide memo Ex PW8/A. In his cross examination, he deposed that he did not join investigation of the case after 03.06.08 and therefore, he had no knowledge as to whether or not the father of accused was joined during the course of investigation after 03.06.08 or not.
14. PW9 Retd. SI Bal Kishan: He is the IO of this case. He deposed about the investigation carried out by him in this case. He deposed on identical lines as deposed by PW4 Ct. Ram Sewak. He proved rukka as Ex PW9/A. He deposed that he had prepared site plan Ex PW9/B at the pointing out of the complainant.
He further deposed that he had obtained opinion Ex PW6/B from Satyam Hospital on MLC of patient Suman Ojha. He further deposed that ACP Shalimar Bagh had sought medical opinion from CMO of Satyam Hospital vide letter dt. 08.08.08 Ex PW9/C and Dr. Soni of Satyam Hospital had furnished reply Ex PW6/C to those queries.
In his cross examination, he admitted that concerned ACP had sought opinion from Satyam Hospital only after hearing of the bail matter in this case on 23.07.08. However, he denied the relevant suggestions put to him on behalf of accused that no incriminating evidence was on record against the State V/s Kamlesh Ojha (" Acquitted") Page 8 of 25 FIR No. 335/08; U/s 313/325 IPC; P.S. Prashant Vihar D.O.D.18.12.2014 accused and accused was falsely implicated in this case. MEDICAL EVIDENCE:
15. PW3 Dr. Sanjeev Aggarwal: This witness deposed that on 29.04.2008, he had conducted ultrasound for featus well being of Ms. Suman who was referred to him by Dr. Vipul Sharma. He found that fetus was normal and having 7 weeks and four day's gestation with normal fetal cardiac activity and there was no surrounding bleed. He proved copy of ultrasound report as Ex PW3/A and ultrasound film as Ex. PW3/B. The said witness has not been cross examined by accused despite grant of opportunity.
However, the said witness was recalled U/s 311 Cr.PC on the request of accused and was cross examined at length. In his cross examination, he deposed that there are high chances of spontaneous abortion to the tune of 1025% as per various studies conducted by various observers from time to time. He admitted that in case of normal pregnancy of less than three months having gestation age of 11 weeks and 3 days whose cervix is normal, OS is closed and there is no evidence of cervical ballooning and no free fluid is seen in POD(pouch of douglas), still, there is chance of natural spontaneous abortion. Not only this, in case of any direct evidence of injury found to the fetus during examination of pregnant lady such as bleeding surrounding the fetus or opening, ballooning or shortening of the cervix, then in such a situation, same is duly mentioned in the ultrasound report. He also admitted that in case of bleeding during pregnancy, same may be referred to State V/s Kamlesh Ojha (" Acquitted") Page 9 of 25 FIR No. 335/08; U/s 313/325 IPC; P.S. Prashant Vihar D.O.D.18.12.2014 as 'threatened abortion' and there could be umpteen causes of bleeding during first three months of pregnancy.
16. PW6 Dr. Soni Anand: This witness had examined complainant Ms. Suman Ojha in Satyam Hospital on 11.05.08. She deposed that on physical examination of complainant, she was conscious oriented. There was tenderness on left side of scalp and bruise on left maxillary region and scratch mark on left hand. P/V examination showed uterus retrovert, 810 weeks size, tender to move, OS closed, bilateral fornices free, no fresh bleeding p/v. She was advised xray skull and ultrasound of whole abdomen.
She further deposed that on 23.05.08, patient Suman Ojha again visited hospital with complaint of two and half month pregnancy with bleeding with history of passage of clots at home. Her ultrasound showed incomplete abortion with POC in the uterine cavity. She examined her vide MLC Ex. PW6/A and also proved her examination notes dt. 23.05.08 as Ex PW6/B. She further deposed that on 12.08.08, ACP Shalimar Bagh had sent written request to give opinion on five points as mentioned therein and accordingly, she gave reply Ex PW6/C to those queries. She also opined that abortion could be because of physical abuse as ultrasound showed incomplete abortion due to which evacuation was done. She proved her opinion in this regard as Ex PW6/D. This witness was not cross examined by accused despite grant of opportunity.
State V/s Kamlesh Ojha (" Acquitted") Page 10 of 25 FIR No. 335/08; U/s 313/325 IPC; P.S. Prashant Vihar D.O.D.18.12.2014 However, the said witness was recalled U/s 311 Cr.PC on the request of accused and was cross examined at length. In her cross examination, she admitted that frequency of abortion during first three months of pregnancy is higher then pregnancy in subsequent months. She also admitted that as a result of physical trauma, the fetus or product of conception can get separated and it may result into abortion or miscarriage. She deposed that abortion can be self inflicted also for various reasons. She did not observe any mark of violence appearing on abdomen of patient Suman Ojha during her examination conducted twice i.e on 11.05.08 and 23.05.08. She clarified that had there been any mark of violence on abdomen of said patient, she would have mentioned so in her MLC Ex PW6/A. She explained that the letter ' G2' appearing at point X on MLC Ex PW6/A means that said patient was carrying pregnancy for second time. The letter of 'AO' appearing at point Y on MLC Ex. PW6/A would mean that there was no history of abortion as per the history given by patient Suman Ojha.
She further deposed that in case patient Suman Ojha would have disclosed before her that she was having past history of abortion then she would advised the patient certain other medicines/drugs besides rest in the sense that there should not be any physical or mental exertion as also to avoid sexual intercourse for protecting the pregnancy of fetus. She deposed that she was not fully aware about the guidelines and/or rules and regulations framed for conducting D and E during first three months of pregnancy of a lady. She admitted that in case of pregnancy of 11 weeks and three days, having its State V/s Kamlesh Ojha (" Acquitted") Page 11 of 25 FIR No. 335/08; U/s 313/325 IPC; P.S. Prashant Vihar D.O.D.18.12.2014 cervix normal and OS closed and there being no evidence of cervical ballooning and no fluid is seen in POD then in such situation, there is no threat of abortion. She did not give any definite reply as to whether she had taken ultrasound report dt. 16.05.08 of Dr. Shailja Jain into consideration before giving her reply dt. 12.08.08 Ex PW6/C to the queries sought by ACP Shalimar Bagh. She clarified that her reply to query no. 2 as mentioned in her reply dt. 12.08.08 Ex PW6/C that 'miscarriage could' be as a consequence of injuries would denote that it was not a definite opinion and same was open to interpretation both ways that it could be or could not be as a consequence of injuries.
After the attention of this witness was drawn to ultrasound report dt. 16.05.08 Ex PW6/DA of Dr. Shailja Jain and she was asked as to what was her opinion in response to query no. 2, this witness replied that pregnancy of patient Suman Ojha was safe till 16.05.08.
ARGUMENTS ADVANCED & CASE LAW CITED
17. While opening the arguments, Ld Subsitute Additional PP vehemently argued that prosecution has been successful in establishing the charges against accused beyond doubt in view of occular testimony of PW2 Ms. Suman Ojha coupled with the medical evidence as available on record. He heavily relied upon the relevant medical record as well as the testimonies of PW3 Dr. Sanjeev Aggarwal and PW6 Dr. Soni in support of his submission that PW2 Suman Ojha was having pregnancy of about eight weeks and same State V/s Kamlesh Ojha (" Acquitted") Page 12 of 25 FIR No. 335/08; U/s 313/325 IPC; P.S. Prashant Vihar D.O.D.18.12.2014 was aborted on account of injuries sustained by her due to beatings given by the accused. He therefore, urged that accused should be convicted in this case.
18. Per contra, Ld defence counsel vehemently argued that prosecution has miserably failed to establish the charges levelled against the accused beyond doubt. In order to buttress the said submission, Ld defence counsel took me to the entire testimony of PW2 Suman Ojha in order to highlight the fact that she has changed her stand several times during her testimony and therefore, her testimony is not reliable and trustworthy. He also referred to the medical evidence available on record in order to submit that the pregnancy of PW2 Suman Ojha was safe atleast till 16.05.08 whereas the alleged incident is dt. 10.05.08 and thus, miscarriage caused to complainant i.e PW2 Suman Ojha could not be attributed to the accused in this case. For the said purpose, he also referred to the relevant portion of cross examination of PW6 Dr. Soni as also to the ultrasound report dt. 16.05.08 Ex PW6/DA of Dr. Shailja Jain of Jain Diagnostic & Heart Clinic available on record. Ld defence counsel also relied upon the relevant portion of Modi's Medical Jurisprudence and Toxicology 23rd Edition in order to bring home his point that there is a distinction between natural and criminal abortion and every case of miscarriage/abortion cannot be treated as criminal abortion so as to convict the accused for the offnece U/s 313 IPC.
19. It may be noted here that accused has been charged with offences U/s 325/313 IPC. Firstly, I shall take the offence U/s 325 IPC which provides State V/s Kamlesh Ojha (" Acquitted") Page 13 of 25 FIR No. 335/08; U/s 313/325 IPC; P.S. Prashant Vihar D.O.D.18.12.2014 that whoever voluntarily causes grievous hurt, shall be punishable for the said offence. The expression ' Grievous hurt' has been denied in Section 320 IPC. The said provision lays down eight different situations in which a person is said to have suffered grievous hurt. It goes without saying that the legislature has intentionally used the word 'voluntarily' before the expression 'causes grievous hurt' in Section 325 IPC. Same clearly shows that the prosecution must prove on record that the offender had caused grievous hurt with intention or knowledge that by his act, he is likely to cause grievous hurt to any person. The explanation appended below Section 322 IPC would make it abundantly clear that a person is not said to have voluntarily caused grievous hurt except when he both causes grievous hurt and at the same time, intends or knows himself to be likely to cause grievous hurt.
20. In the case in hand, PW2 Suman Ojha is the sole eye witness to the alleged incident, examined during trial. However, she did not utter even a single word that accused had caused any grievous hurt to her or that she had sustained grievous injury during the course of alleged incident. Not only this, her MLC Ex PW6/A of Satyam Hospital is also silent about the nature of injuries sustained by her. Moreover, PW6 Dr. Soni who had prepared said MLC, also entered into witness box as PW6 but she also did not depose about the nature of injuries sustained by injured Suman Ojha. It may be noted here that PW6 also gave her subsequent opinion on 03.06.08 which is Ex. PW6/D1. Even at that time, she did not mention as to what was the nature of injuries sustained by patient Suman Ojha in her MLC Ex. PW6/A. At the relevant State V/s Kamlesh Ojha (" Acquitted") Page 14 of 25 FIR No. 335/08; U/s 313/325 IPC; P.S. Prashant Vihar D.O.D.18.12.2014 space meant for prescribing nature of injuries, it is mentioned that patient was under observation. Thereafter, no effort seems to have been made by investigating agency to obtain definite opinion regarding nature of injuries sustained by injured Suman Ojha during the entire course of investigation or even till date.
21. In view of the aforesaid discussion, there is no iota of doubt that prosecution has miserably failed to establish the offence U/s 325 IPC against accused beyond shadow of doubt.
22. This brings me down to the offence U/s 313 IPC charged against the accused. The perusal of Section 313 IPC would show that any person who voluntarily causes a woman with child to miscarry without consent of such women, is liable for punishment under the said provision.
23. At this juncture, it is relevant to note that every miscarriage or abortion does not amount to criminal abortion as it is a well settled rule of nature that there may be natural miscarriage/abortion during early stages of pregnancy of a woman. It has been mentioned by Modi's in his Medical Jurisprudence and Toxicology 23rd Edition that natural miscarriage occurs generally in women who are weak, irritable and unhealthy and when the embryo or foetal membranes are diseased. A person is said to have committed criminal abortion if it is found that there is laceration in the vagina and on the cervix, or marks of violence on the abdomen of a healthy woman, or wounds on the foetus or membranes, otherwise free from disease. The question whether the marks of injuries on the vagina in the cervix were due to criminal interference, or due to traumatism by the passage of the foetus during State V/s Kamlesh Ojha (" Acquitted") Page 15 of 25 FIR No. 335/08; U/s 313/325 IPC; P.S. Prashant Vihar D.O.D.18.12.2014 spontaneous miscarriage, can be determined by noting their site, extent and appearance, and the physical development of the foetus.
24. As already discussed above, the prosecution has examined two witnesses namely PW3 Dr. Sanjeev Aggarwal and PW6 Dr. Soni for the purpose of proving relevant medical record pointing out towards miscarriage of complainant Suman Ojha during the course of first three months of her pregnancy. It is an undisputed case of prosecution that PW2 Suman Ojha was having pregnancy of about nine weeks as on the date of incident. Same can be gathered from the testimony of PW3 Dr. Sanjeev Aggarwal and report dt. 29.04.08 Ex PW3/A of ultrasound of complainant Suman Ojha conducted by him wherein she is shown to be having normal pregnancy of seven weeks and four days gestation with fetal cardiac activity.
25. Although, the prosecution has heavily relied upon the testimonies of aforesaid two doctors examined during trial, in order to show that there had been miscarriage of complainant Suman Ojha due to alleged incident of 10.05.08 but it is pertinent to note that none of the said two doctors claimed that the miscarriage of complainant Suman Ojha had taken place due to any act which may be attributed to the accused. Although, it is alleged that accused had given fist and kick blows on the abdomen of complainant Suman Ojha(PW2) knowingly that she was pregnant at that time but it is important to note that there is no mark/sign of any physical violence appearing on the abdomen part of complainant Suman Ojha as per the testimonies of both these doctors as well as the medical documents available on record. In this regard, it would be useful to refer to the relevant portion of cross examination of PW3 State V/s Kamlesh Ojha (" Acquitted") Page 16 of 25 FIR No. 335/08; U/s 313/325 IPC; P.S. Prashant Vihar D.O.D.18.12.2014 Dr. Sanjeev Aggarwal whereby he has admitted that there are high chance of spontaneous abortion to the tune of 1025 per cent in the first three months of normal pregnancy as per various studies conducted from time to time. Not only this, said witness also explained that in case there is any direct evidence of injury such as bleeding surrounding the fetus or ballooning or shortening of the cervix found to the fetus during examination of pregnant lady then same is duly mentioned in the ultrasound report and there may be several causes of bleeding during first three months of pregnancy.
26. Now let me discuss the testimony of PW6 Dr. Soni as the case of prosecution is mainly based upon the opinion given by this witness. It may be pointed out here that this witness had initially examined complainant Suman Ojha in Satyam Hospital vide MLC Ex PW6/A. She also gave replies to certain queries raised by ACP Shalimar Bagh during the course of investigation and termed the case of patient Suman Ojha as termination of her pregnancy because of physical abuse vide her subsequent opinion dt. 03.06.08 Ex PW6/D. During her initial examination on 27.7.12, PW6 deposed that patient Suman Ojha was found having pregnancy of about 810 weeks size and there was no fresh bleeding at the time of her physical examination on 11.05.08. The said patient was however advised xray of skull and ultrasound of whole abdomen. It has come on record that patient Suman Ojha(PW2) had been discharged from Satyam Hospital on 13.05.08 and she again visited the said hospital on 23.05.08 when abortion had taken place vide noting dt. 23.05.08 Ex PW6/B appearing on back side of MLC Ex PW6/A.
27. At this juncture, it is necessary to mention that during the course State V/s Kamlesh Ojha (" Acquitted") Page 17 of 25 FIR No. 335/08; U/s 313/325 IPC; P.S. Prashant Vihar D.O.D.18.12.2014 of hearing on bail petition of accused before Sessions Court on 23.07.08, it was observed that ultrasound report dt. 16.05.08 of complainant Suman Ojha showed that her fetus was normal and no abnormality was observed by the doctors. Keeping the same in view, it was observed by the Court that it would be necessary to ascertain as to what were the circumstances which led to the abortion of complainant on 23.05.08 when her pregnancy was absolutely normal till 16.05.08. In this backdrop, ACP Shalimar Bagh wrote a letter dt. 08.08.08 Ex PW9/C wherein he raised six queries before Hospital Authority of Satyam Hospital for giving their medical opinion. The most relevant query is query no. 2 which reads as under: " 1.
2. Whether the miscarriage/abortion held on 23.05.08 was in consequence of the injuries caused on 10.05.08 or otherwise.
3.
4.
5.
6."
28. In response to above said queries, PW6 Dr. Soni gave her opinion vide letter dt. 12.08.08 Ex PW6/C wherein in reply to query no. 2, she mentioned that safety of patient, miscarriage could not have been avoided and miscarriage could be as a consequence of injuries. She explained the use of term ' could ' in reply no. 2 by deposing that same was not her definite opinion and it could be interpretated either way that miscarriage/abortion could be or could not be consequence of injuries. Not only this, further cross examination State V/s Kamlesh Ojha (" Acquitted") Page 18 of 25 FIR No. 335/08; U/s 313/325 IPC; P.S. Prashant Vihar D.O.D.18.12.2014 of PW6 whereby she was confronted with ultrasound report dt. 16.05.08 Ex PW6/DA and she deposed that the pregnancy of complainant Suman Ojha was safe till 16.05.08, leaves no scope of doubt that the alleged incident dated 10.05.08 had nothing to do with the abortion/miscarriage of complainant Suman Ojha which took place on 23.05.08.
29. Be that as it may, Court is entirely in agreement with the submission made by Ld defence counsel that in the absence of any independent corroboration to the version given by complainant Suman Ojha, her testimony is required to be scrutinized with great circumspection caution and caution. Although, the complainant as PW2 deposed on the lines of her police statement Ex PW2/A made before the police, during her chief examination but her testimony has been demolished through litmus test of cross examination conducted on behalf of accused for several reasons which may be detailed as under: Firstly, she admitted during cross examination held on 03.09.13 that she had undergone an abortion due to bleeding in the year 2002. However, she concealed this fact from PW6 Dr. Soni during her initial examination on 11.05.08. Same is quite clear from the relevant portion of cross examination of PW6 Dr. Soni Anand conducted on 08.07.14 when she explained that letter 'AO' mentioned at point Y on MLC Ex PW6/A of Suman Ojha(PW2) would mean that there was no history of abortion as per history given by the said patient. PW6 also deposed that had there been any past history of abortion of patient Suman Ojha then she would have been advised State V/s Kamlesh Ojha (" Acquitted") Page 19 of 25 FIR No. 335/08; U/s 313/325 IPC; P.S. Prashant Vihar D.O.D.18.12.2014 medicines/drugs besides rest. Having not done so, the possibility of abortion/ miscarriage of patient Suman Ojha due to bleeding as also took place in the past in the year 2002, cannot be ruled out in this case;
Secondly, PW2 claimed that her previous husband had taken her to doctor for removal of fetus at the time of his first operation in the year 2002 but she did not remember as to whether she had taken any treatment from any doctor in order to ensure that such type of abortion may not happen in future. Same also shows that there was every possibility of spontaneous miscarriage/ abortion having taken place on subsequent occasion i.e on 23.05.08 due to similar reason. This is more so when the pregnancy of PW2 was safe till 16.05.08 as per her ultrasound report Ex PW6/DA;
Thirdly, the cross examination of PW2 Suman Ojha would show that she is blowing hot and cold in the same breathe by deposing at one place in cross examination dt. 03.09.13 that she married with accused as accused used to touch her private parts of her body including chest and had also made physical relations with him prior to marriage and she also stated that she performed marriage with accused due to pressure of family members. At the other place in her subsequent cross examination dt. 03.09.13, PW2 deposed that in the month of February 2008, when her in laws visited their house at Rohini in the presence of her mother and requested her to marry with accused, she had told them that she would prefer to marry with a dog but not with the accused as accused had been harassing her sexually just after the death of her husband. She also changed her stand several times by claiming State V/s Kamlesh Ojha (" Acquitted") Page 20 of 25 FIR No. 335/08; U/s 313/325 IPC; P.S. Prashant Vihar D.O.D.18.12.2014 on the one hand that she had not told about the fact that accused was sexually harassing her after the death of her husband, either to her mother or her in laws but had told the same to her bhabhi but she changed the said version by claiming on the other hand that she had told about the said fact to her inlaws but still they pressurized her not to make any complaint. She admitted that she did not make any police complaint regarding sexual harassment allegedly caused by accused. It does not appeal to reasoning that PW2 Suman Ojha kept on allowing the accused to sexually harass her after death of previous husband without making any complaint to any of her family members with whom she may be confiding. Rather, she started residing with the accused in one house and made physical relations with him even prior to entering into second marriage with him.
Fourthly, the relevant portion of cross examination of PW2 Suman Ojha recorded on 02.05.14 wherein she admitted that she had conversation with father of accused that in case her son is given share in the property no. C93, Azadpur Delhi as well as in property situated in native village, the present matter could get settled, also lends credence to the defence raised by accused that the present case was got falsely lodged against him as the complainant wanted movable or immovable property from him and from his parents by getting herself aborted from the doctor.
Fifthly, PW2 claimed that she never visited Satyam Hospital prior to 10.05.08 and when she was taken to Satyam Hospital by the police on 10.05.08, accused had also accompanied them to the said hospital. Same is in State V/s Kamlesh Ojha (" Acquitted") Page 21 of 25 FIR No. 335/08; U/s 313/325 IPC; P.S. Prashant Vihar D.O.D.18.12.2014 contradiction to her previous testimony recorded on 26.07.12 when she deposed that accused had left the house alongwith his clothes after the alleged incident of 10.05.08. When PW2 was confronted with the same, she came out with another story by claiming that accused had accompanied her to Satyam Hospital on 10.03.08 and she got confused as she was under the impression that questions were being asked from her with regard to incident of 10.03.08. At that stage only, PW2 gave new story by claiming that there was exchange of heated arguments between her and accused on 10.03.08 due to which she fell unconscious and accused had taken her to Satyam Hospital on that day. However, she admitted that she did not tell about the alleged incident of 10.03.08 to the police or even to the Court during her chief examination. Then, PW2 again changed her stand by claiming that accused was not in a position to remove her to the hospital as he had sustained injury on his leg on account of some incident which took place on 09.03.08 and one police official residing in their neighbourbood, had taken her to Satyam Hospital on 10.03.08. The said conduct of PW2 creates reasonable doubt in the veracity of her testimony;
Sixthly, PW2 admitted that she had filed written complaint dt. 06.07.09 Ex PW2/DA before ACP CAW Cell, Rohini. She explained that she could read and write Hindi language but pleaded her ignorance about the contents of said complaint Ex PW2/DA by deposing that she had signed the said complaint without going through its contents. Although, she claimed that the said complaint was got drafted with the help of some person but she State V/s Kamlesh Ojha (" Acquitted") Page 22 of 25 FIR No. 335/08; U/s 313/325 IPC; P.S. Prashant Vihar D.O.D.18.12.2014 could not disclose the name of said person. It may be mentioned here that it was claimed in para 1 of said complaint Ex PW2/DA that on 10.03.08, accused had severally beaten up her with fist and kick blows under the influence of liquor, due to which she had sustained severe injuries in her stomach and those injuries caused damage to her embryo as she was having pregnancy at that time. The explanation furnished by PW2 that she had signed her complaint dt. 06.07.09 Ex PW2/DA without going through its contents, is not acceptable at all by applying the test of reasonable and prudent person. This is more so when PW2 admitted during cross examination that she was fully conscious in July 2009 and said police complaint is written in Hindi language and nothing had stopped PW2 to go through the contents thereof as after all, it was the police complaint lodged by her. She admitted that there was no whisper of any incident dt. 10.05.08 in said complaint Ex PW2/DA. Same also creates reasonable doubt in the prosecution story as mentioned in the charge sheet and also puts serious dent on the credibility of the testimony of PW2;
Seventhly, PW2 could not disclose as to whether she met with accused between 16.05.08 and 23.05.08. She claimed that police had recorded her statement firstly in Satyam Hospital on 11.05.08 which is again contrary to the record which shows that her statement was recorded for the first time on 03.06.08 and the prosecution story says that PW2 Suman Ojha expressed inability to make any statement in Satyam Hospital on 11.05.08 due to severe pain and she herself visited PP Sector 16 Rohini on 03.06.08 when State V/s Kamlesh Ojha (" Acquitted") Page 23 of 25 FIR No. 335/08; U/s 313/325 IPC; P.S. Prashant Vihar D.O.D.18.12.2014 her statement Ex PW2/A was recorded by PW9 ASI Bal Kishan; and Eighthly, PW2 Suman Ojha herself deposed in her cross examination recorded on 02.05.2014 that when police had visited Satyam Hospital one day after the incident of 10.05.2008, she had told false story before the police that she had fallen down from the roof. She again improved her statement by claiming that she had told the police that she had fallen down from the stairs in order to save the accused as also to save the married life. It is quite strange that no such statement of said witness, is shown to have been recorded on that day, as per the case of prosecution as mentioned in the Chargesheet. It is also not believable that PW2 claimed to have gathered courage to disclose the actual facts to the police after she was consoled by nursing staff of hospital when she was reminded of the previous incident dated 10.03.2008, as her police statement Ex. PW2/A is completely silent about the previous incident of 10.03.2008.
30. Moreover, there is considerable delay in registration of FIR in this case which has not been explained by the prosecution witnesses during trial. The alleged incident took place on 10.05.2008, as per the case of prosecution whereas the FIR in question is shown to have been registered only on 03.06.2008 i.e. after the gap of 23 days of the date of incident. Although, it is alleged that complainant Suman Ojha expressed her inability to give any statement due to severe pain, before ASI Balkishan on 11.05.2008 due to which DD no. 13PP dated 11.05.2008 was kept pending, as deposed by IO i.e. PW9 SI (Retd.) Balkishan but complainant i.e. PW2 Suman Ojha nowhere State V/s Kamlesh Ojha (" Acquitted") Page 24 of 25 FIR No. 335/08; U/s 313/325 IPC; P.S. Prashant Vihar D.O.D.18.12.2014 whispered about the same in her testimony recorded during trial. Rather, she claimed to have made statement before the police in Satyam Hospital probably on 11.05.2008. In her cross examination, PW2 denied the suggestion that she had refused to give statement to the police at any point of time. Same demolishes the case set up by prosecution for explaining the delay in registration of FIR and thus, it is fatal to the case of prosecution.
31. In the light of aforesaid discussion, Court is of the considered opinion that the testimony of PW2 Suman Ojha who is the sole eye witness examined during trial, is not free from doubt. In other words, her testimony is not reliable and trustworthy. In the absence of any independent corroboration to the testimony of said witness, Court is of the view that prosecution has also failed to establish the charge in respect of offence U/s 313 IPC against the accused beyond shadow of doubt. Consequently, accused Kamlesh Ojha is hereby acquitted of the charges levelled against him by giving him benefit of doubt. File be consigned to Record Room after compliance of Section 437A Cr.PC as per the rules.
Announced in open Court today
dt. 18.12.2014 (Vidya Prakash)
Additional Sessions Judge04
North District, Rohini Courts
Delhi
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