Delhi District Court
State vs Asha Ram Fir No.271 13 Ps Adarsh Nagar 1 Of ... on 14 May, 2018
IN THE COURT OF MS. BIMLA KUMARI: ADDITIONAL
SESSIONS JUDGE/SPECIAL FAST TRACK COURT:ROHINI
DELHI
Sessions Case No : 57732/16
Old S.C. No. : 28/14
STATE
V/S
ASHA RAM,
S/O. SH. FATEH SINGH,
R/O. H.NO.161, MUKHMELPUR,
DELHI.
FIR No : 271/13.
Police Station : ADARSH NAGAR.
Under Sections : 376 IPC
Date of Committal to Sessions Court : 13.02.2014
Date on which Judgment reserved : 25.04.18 & 14.05.2018
Date on which Judgment announced : 14.05.2018
STATE VS ASHA RAM FIR NO.271 13 PS ADARSH NAGAR 1 of 17
J U D G M E N T
1.In the present case, charge in respect of offence u/s. 376 IPC was framed against accused by ld. Predecessor on 19.03.2014 with the allegations that on 01.10.2013 at about 1:15 p.m. at B19, Amba Tower Basement, Azadpur, Delhi, he committed rape upon the prosecutrix without her consent.
2. Accused pleaded not guilty to the said charge and claimed trial.
3. To bring home the guilt of the accused, prosecution has examined sixteen witnesses.
4. PW1 is HC Banwari Lal. He was MHC(M) at PS Adarsh Nagar. He has deposed that on 01.10.2013 W/SI Sushila Rana deposited the case properties in malkhana and he made entry in register No.19, which is Ex.PW1/A. He has further deposed that on 21.05.2013 Ct. Ravinder took the exhibits alongwith sample seal from him vide RC No.98/21/13 Ex.PW1/B and deposited the same in FSL, Rohini and after depositing the same handed over the acknowledgment receipt to him, which is Ex.PW1/C. The exhibits were not tampered with, so long as they remained in his custody.
5. In crossexamination by ld. Counsel for accused he has denied that sealed parcels were not deposited in the malkhana, in the manner, he deposed.
6. PW2 is Dr. Avinash Tripathi. He has deposed that on 01.10.2013, one patient Asha Ram was brought to the hospital for STATE VS ASHA RAM FIR NO.271 13 PS ADARSH NAGAR 2 of 17 medical examination. Dr. Nitin Mukesh, JR medically examined him under his supervision vide MLC Ex.PW2/A. He has further deposed that on the same day, he conducted the preliminary medical examination of the prosecutrix vide MLC Ex.PW2/B. Thereafter, she was referred to SR Gynae, for her gynecological examination.
7. PW3 is HC Shamsher Singh. He has deposed that on 01.10.2013 at about 8:20 p.m., Ct. Vinod handed over one tehrir, which was sent by W/SI Sushila Rana. On the basis of Tehrir, he recorded the FIR Ex.PW3/A and handed over the copy of FIR to Ct. Vinod for giving the same to IO.
8. PW4 is Dr. Mallika Rani. She has identified the handwriting and signatures of Dr. Poonam Baranmal, who has examined the prosecutrix gynecologically vide portion B to B1 on MLC Ex.PW4/A. She has deposed that Dr. Poonam had obtained samples and handed over the same to the police, after sealing them.
9. PW5 is W/HC Santosh. She has deposed that on 01.10.2013 at about 1:51 p.m., she received an information from control room regarding quarrel at B19, Amba Tower, Azadpur. The said information was recorded by W/Ct. Rekha in the DD Register vide DD No.46B in her presence. The attested copy of DD No.46B is Ex.PW5/A.
10. PW6 is Dr. Narender. He had conducted the Potency Test of the accused vide his noting 'X' to 'X1' on MLC Ex.PW2/A.
11. PW7 is Ct. Manoj. He has deposed that on receipt of DD No.46B, he alongwith HC Suresh went to the spot, where the STATE VS ASHA RAM FIR NO.271 13 PS ADARSH NAGAR 3 of 17 complainant and accused Asha Ram met them. The complainant informed about the committal of rape upon her by accused Asha Ram. HC Suresh informed the SHO and requested him to send the lady police officer. After sometime, W/SI Sushila Rana alongwith W/Ct. Ishwanti and Ct. Vinod reached the spot. HC Suresh produced the prosecutrix and accused to W/SI Sushila Rana and informed the facts to her. Thereafter, IO W/SI Sushila Rana discharged HC Suresh and made inquiry from the complainant and accused. In the meantime Ajeet, husband of the prosecutrix also reached and thereafter the prosecutrix and accused were taken to BJRM Hospital. He got conducted the medical examination of the accused. After his medical examination, the doctor handed over three sealed parcels alongwith sample seal to him and he handed over the same to IO, which were taken into possession by her, vide seizure memo Ex.PW7/A. W/HC Ishwanti got conducted the medical examination of the prosecutrix. IO recorded the statement of prosecutrix and prepared the Tehrir, which was handed over to Ct. Vinod for registration of FIR. Accused was arrested vide arrest memo Ex.PW7/B. He conducted the personal search of the accused vide memo Ex.PW7/C. Thereafter, IO prepared the site plan at the instance of the prosecutrix. IO interrogated the accused and recorded his disclosure statement, which is Ex.PW7/D. Ct. Vinod came at the spot and handed over copy of FIR and original rukka to the IO. The prosecutrix was discharged and accused brought to the police station.
12. In crossexamination by ld. Counsel for accused, PW7 has STATE VS ASHA RAM FIR NO.271 13 PS ADARSH NAGAR 4 of 17 denied that he did not join the investigation, in the manner, he deposed. He has further denied that documents were not prepared, in the manner, he deposed and signatures of accused were obtained on blank papers, which were, later on, converted into incriminating documents.
13. PW8 is Ct. Ravinder. He has deposed that on 21.10.2013 on the instructions of IO, he obtained four sealed pullandas alongwith sample seal from the MHC(M) and took them to the FSL, Rohini. He deposited the exhibits in FSL and obtained acknowledgment receipt. He came back to the police station and handed over the acknowledgment receipt to the MHC(M).
14. PW9 is V. Shankarnarayanan, SSO, RFSL, Chanakyapuri, New Delhi. He has examined exhibits biologically and also conducted the DNA examination. His detailed biological report is Ex.PW9/A and genotype data is Ex.PW9/B.
15. PW10 is Shri Dheeraj Mor, ld. MM. He has recorded the statement of the prosecutrix u/s. 164 Cr.P.C., which is Ex.PW10/A.
16. PW11 is the prosecutrix. She has deposed that on 28.09.2013, she went to Azadpur for some private work and had seen the board on the clinic of a doctor. She went inside the clinic, where the doctor was present. His name was Asha Ram. She inquired from the doctor for what kind of ailment, he prescribed the medicines. Upon which, the doctor told her that he prescribed the medicines for all ailments. She told the doctor that she was suffering from itching in between her thighs and asked him the charges of the treatment. The STATE VS ASHA RAM FIR NO.271 13 PS ADARSH NAGAR 5 of 17 doctor told her that an amount of Rs.1500/Rs.2000 would be required for the treatment. Since, she was not having enough money for the treatment, she told the doctor that she would come after two/three days for the treatment.
17. She has further deposed that on 01.10.2013 she visited the clinic of Dr. Asha Ram. At that time, noone was present in the clinic except accused Asha Ram. She asked Dr. Asha Ram to give the treatment to her. Dr. Asha Ram told her that he would not give treatment and prescribe the medicines without checking her. Thereafter, Dr. Asha Ram asked her to lay down, on a stretcher, lying in the clinic. Accordingly, she laid down on the stretcher. During checking, Dr. Asha Ram touched her body on such a place that she got frightened and due to fear she came out of his clinic. She raised an alarm and many public persons gathered outside the clinic. Police also reached there. Police made inquiries from her. Accused Asha Ram is present in the court. Police recorded her statement Ex.PW11/A. Her medical examination got conducted by the police. Doctor had taken her clothes into possession. Her statement u/s. 164 Cr.P.C. was also recorded by ld. MM. She had shown the place of incident to the police. Accused Asha Ram was arrested by the police, vide memo, Ex.PW7/B bearing her signature at point B. She can not identify her underwear Mark PW11/PX.
18. In crossexamination by ld. Addl. PP, she has deposed that she had not stated to the police in her statement that when accused Asha Ram was checking her, he closed the door of the clinic or that when she STATE VS ASHA RAM FIR NO.271 13 PS ADARSH NAGAR 6 of 17 objected, he said to her that he had to check her and he put his hand on her mouth and committed rape upon her, without her consent.
19. She has admitted that police went to the spot and took photographs of the clinic. She has further admitted that she signs the papers after going through the contents. The Complaint Ex.PW11/A was recorded by police on her dictation but the same was not read over to her. In a question, put to her, by ld. Addl. PP that the underwear Mark PW11/PX belonged to her she has deposed that the underwear Mark PW11/PX may or may not belong to her and due to lapse of time, she is not able to identify the same. She has admitted that her underwear was taken into possession by the doctor, at the time of her medical examination and was seized by the police vide seizure memo Ex.PW12/A. She has denied that accused committed rape upon her and she intentionally concealed the facts in order to save the accused.
20. In crossexamination by ld. Counsel for accused she has deposed that accused touched the part of her body, in between the naval and above the pubic region. She has admitted that she gave the statement u/s. 164 Cr.P.C., Ex.PW10/A, on the tutoring of police. She has further admitted that her signatures on Ex.PW12/A was obtained on blank paper. She has denied that her signature on Ex.PW11/A (rukka) was obtained by the police on blank paper and has volunteered that police recorded her statement, on her dictation, but the same was not read over to her. She has admitted that her underwear, which was taken into possession by the doctor, at the time of her medical examination, was not STATE VS ASHA RAM FIR NO.271 13 PS ADARSH NAGAR 7 of 17 sealed by the doctor in her presence. She has further admitted that no galat kaam was committed by the accused. She has admitted that accused was not arrested in her presence.
21. PW12 is W/Ct. Ishwanti. She has deposed that on 01.10.2013 on receipt of DD No.46B, she alongwith IO W/SI Sushila Rana and Ct. Vinod went to B19, Amba Tower Basement, Azadpur, where HC Suresh and Ct. Manoj were present. They produced the complainant and accused. HC Suresh briefed the facts to W/SI Sushila Rana, who made inquiry from the complainant and accused. Thereafter, HC Suresh left the spot. She alongwith Ct. Vinod, Ct. Manoj, W/SI Sushila Rana, accused, complainant and her husband went to hospital, where the prosecutrix was medically examined. Doctor handed over one sealed pullanda alongwith sample seal, which were taken into possession by the IO, vide seizure memo Ex.PW12/A. IO collected the MLC of the complainant and recorded her statement. IO W/SI Sushila Rana prepared the rukka and handed over the same to Ct. Vinod for registration of the case.
22. In crossexamination by ld. Counsel for accused, PW12 has deposed that she was present in the police station, when the call was received. She has denied that she did not join the investigation, in the manner, she has deposed.
23. PW13 is Ajit Singh. He is the husband of the prosecutrix. He has deposed that on 28.09.2013, his wife had gone to the Labour Office, Amba Tower for getting prepared the labour card. When she was coming STATE VS ASHA RAM FIR NO.271 13 PS ADARSH NAGAR 8 of 17 back, she saw the board of Dr. Asha Ram. He has further deposed that on 01.10.2013, she went to the clinic of the Dr. Asha Ram for treatment. She told him (PW13) that the said doctor took her inside the room for checking and during checking, she got nervous. Her wife telephoned him. Later on, he went to the PS Adarsh Nagar. The report was lodged by his wife. Accused is present in the court. Accused was arrested vide arrest memo Ex.PW7/D. He has nothing more to say.
24. In crossexamination by ld. Addl. PP, he has denied that on 01.10.2013 his wife telephonically informed him that she was raped by the accused at his clinic or that after receiving the telephone call, he immediately went to the Amba Tower and after seeing the condition of his wife, he immediately took her to the BJRM Hospital and got conducted her medical examination. He has denied that he could not depose the facts due to lapse of time.
25. PW14 is HC Suresh Chand. He has deposed that on 01.10.2013, Duty officer handed over DD No.46B to him. On receipt of the same, he alongwith Ct. Manoj went to the spot, where prosecutrix, her husband and accused were present. Prosecutrix told him that accused committed rape upon her. He informed the duty officer and SHO. After sometime, SI Sushila Rana came there. Thereafter, he left the spot.
26. PW15 is Sanjay. He has deposed that he has been running a photo studio in the name and style of 'Krishna Studio', at shop no.41, Gopal Nagar, Azadpur, Delhi. On 01.10.2013, he went to to Amba Tower, Azadpur and took seven photographs, Ex.PW15/A1 to STATE VS ASHA RAM FIR NO.271 13 PS ADARSH NAGAR 9 of 17 Ex.PW15/A7. His statement recorded by the IO. He issued a certificate u/s. 65B of the Indian Evidence Act, which is Ex.PW15/B.
27. In crossexamination by ld. Counsel for accused, he has deposed that in the noon time, IO came to his studio. He alongwith IO, W/SI Sushila Rana, went to the spot within five minutes.
28. PW16 Inspector Sushila Rana is the IO of the case.
29. Statement of accused u/s. 313 Cr.P.C., has been recorded separately, wherein he has denied allegations of the prosecution. He has stated that he is innocent and has been falsely implicated in the present case. The complainant was lodged by the prosecutrix only to grab his property and to extort money from him. The original documents of the property were stolen by his son and prosecutrix. He lodged the complaint against prosecutrix and his son. A case regarding the incident was got registered against them by the court of Shri Gagandeep Singh, ld. MM, Rohini Courts, Delhi. His son and prosecutrix are close friends. They have registered a false case only to grab his property and to extort money. At present, the prosecutrix and his son are living in the property and he is living with his blind son, Joginder.
30. Accused did not examine any witness in his defence.
31. I have heard arguments from ld. Counsel for accused, who has prayed for acquittal of accused by submitting that the prosecutrix and her husband have not supported the prosecution story. The prosecutrix did not identify her cloth. FSL result is in favour of accused.
32. On the other hand, ld. Addl. PP has submitted that testimony STATE VS ASHA RAM FIR NO.271 13 PS ADARSH NAGAR 10 of 17 of all the PWs is cogent and reliable. There is sufficient material on record to convict the accused.
33. It is settled law that accused can be convicted on the sole testimony of the prosecutrix provided her testimony is trustworthy and reliable.
34. In Abbas Ahmad Choudhary Vs. State of Assam I (2010) CCR 402(SC), it has been observed that in a matter of rape, the statement of the prosecutrix must be given prime consideration, but, at the same time, the broad principle that the prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape and statement of prosecutrix cannot be treated as gospel truth. The Apex Court has held as under: "We are conscious of the fact that in a matter of rape, the statement of the prosecutrix must be given primary consideration, but, at the same time, the broad principle that the prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape and there can be no presumption that a prosecutrix would always tell the entire story truthfully."
35. It was also observed by our own Hon'ble High Court in Crl.A.1059/2015 & Crl.M.B.7901/2015 decided on 28.07.2016 as under: "Appellant's conviction is primarily based upon the sole testimony of the prosecutrix 'X' which has not been corroborated by any STATE VS ASHA RAM FIR NO.271 13 PS ADARSH NAGAR 11 of 17 other independent source. Needless to say conviction can be based on the sole testimony of the prosecutrix provided it lends assurance of her testimony. In case, the court has reasons not to accept the version of the prosecutrix on its face value, it may look for consideration."
36. In Sadashiv Ramrao Hadbe vs. State of Maharashtra & Anr, 2006 (1)) SCC 92, the Apex Court while reiterating that in a rape case, the accused could be convicted on the sole testimony of prosecutrix, if it is capable of inspiring the confidence in the mind of the Court, put a word of caution that the Court should be extremely careful while accepting the testimony, when the entire case is improbable and unlikely to have happened. This what has been stated: "It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or that whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen."
37. However, after going through the testimony of the prosecutrix, I am of the considered view that she is not trustworthy and reliable. She has not been consistent in her testimony and made STATE VS ASHA RAM FIR NO.271 13 PS ADARSH NAGAR 12 of 17 improvement in her testimony.
38. From the testimony of PW11/prosecutrix, it is not clear that as to what offence was committed upon her by the accused.
39. In her statement Ex.PW11/A, she has stated that the accused closed the door of his clinic and when she raised an objection, he stated to her that he had to check her and thereafter he pressed her mouth and committed rape upon her against her wishes. In other words, as per the complaint Ex.PW11/A, rape was committed upon her by the accused without her consent.
40. But in her testimony, she has no where deposed that accused committed rape upon her and has only deposed that accused touched her body and she got frightened and came out of the clinic. It is worth nothing that in crossexamination by ld. Addl. PP she has categorically deposed that she had not stated to police in her statement that when accused was checking her, he closed the door of the clinic and when she objected he told her that he had to check her and thereafter he put his hand on her mouth and committed rape upon her, without her consent. She has clearly deposed that complaint Ex.PW11/A was recorded by the police on her dictation, but the same was not read over to her. She has categorically denied that accused committed rape upon her or that she concealed the facts to save the accused.
41. In crossexamination by ld. Counsel for accused also she has admitted that no galatkaam was committed by accused Asha Ram.
42. Further, from the testimony of the prosecutrix, it is not STATE VS ASHA RAM FIR NO.271 13 PS ADARSH NAGAR 13 of 17 clear as to where the alleged act was committed by the accused upon the prosecutrix.
43. It is significant to note that in her complaint to police Ex.PW11/A, she has stated that accused called her inside the clinic and made her to lay down on the stretcher and started checking the upper portion of her legs. Thereafter, he closed the door of the clinic and committed rape upon her without her consent. In other words, the alleged act was committed by the accused upon the stretcher, which was lying in the clinic of the accused.
44. But, in her statement u/s. 164 Cr.P.C., she has stated that accused Asha Ram called her inside the clinic and stated to her that he would give the medicine after checking her. Thereafter, he asked her to remove her salwar. Accordingly, she removed her salwar and laid down on the table on the asking of accused. Thereafter, accused closed the door and stated to her that he was facing difficulty in checking her on the table and asked her to lay down on the plastic sheet on the floor. Accordingly, she laid down on the plastic sheet on the floor. Thereafter, accused removed his clothes and committed rape upon her. In other words, the alleged act was committed by the accused on the floor of the clinic.
45. Further, from the testimony of the prosecutrix, it is not her that, as to who informed the police on 100 number.
46. It is significant to note that in her statement to police STATE VS ASHA RAM FIR NO.271 13 PS ADARSH NAGAR 14 of 17 Ex.PW11/A and statement u/s. 164 Cr.P.C., she has stated that after committal of rape upon her by the accused, she herself informed the police at 100 number. In other words, the prosecutrix herself informed the police.
47. But in her testimony no such facts have been deposed by her. She has deposed that after the touching her body by the accused, she got frightened and came outside the clinic and raised an alarm. Many public persons had gathered outside the clinic. Police also came there and made inquiry from her.
48. Further, from the testimony of prosecurtrix, it is not clear as to whether her underwear Mark PW11/PX was seized and sealed in this case.
49. It is significant to note that the prosecutrix has deposed that she cannot identify her underwear of purpole colour Mark PW11/PX. In her crossexamination by ld. Addl. PP she has deposed that due to lapse of time, she is not able to identify her underwear. But at the same time, she has admitted that her underwear was taken into possession by the doctor at the time of her medical examination and later on same was seized by the doctor vide seizure memo Ex.PW12/A.
50. But in her crossexamination by ld. Counsel for accused she has admitted that her signatures on the seizure memo Ex.PW12/A was obtained on the blank paper. She has further admitted that the underwear which was taken into possession by the doctor, at the time of her medical examination, was not sealed by the doctor in her presence.
STATE VS ASHA RAM FIR NO.271 13 PS ADARSH NAGAR 15 of 17
51. Further, the FSL Result is also in favour of the accused.
52. It is significant to note that as per Biological Report prepared by PW9 Shri V. Shankarnarayanan, Senior Scientific Officer, RFSL, Chanakyapuri, New Delhi, Ex.PW9/A, human semen has been detected on the underwear of the prosecutrix. But as per the DNA result Alleles from the source of exhibit Ex.2 i.e. blood sample of the accused Asha Ram were not counted in the Allelic data of the source of exhibit '1a' i.e. underwear of the victim / prosecutrix.
53. In other words, the semen on the underwear of the prosecutrix Mark PW11/PX was not pertaining to accused Asha Ram.
54. Further, as per DD No.46B, Ex.PW5/A, the information was regarding some quarrel and not rape.
55. Moreover, the other material witness i.e. PW13, who is the husband of the prosecutrix has also not supported the prosecution story by deposing that his wife had told him that she became nervous, during checking by accused.
56. In crossexamination by ld. Addl. PP, he has categorically denied that on 01.10.2013 at about 1:30 p.m., his wife informed him that she was raped by accused and after receiving the information, he went to Amba Tower and after seeing the condition of his wife he took her to BJRM Hospital and got conducted her medical examination.
57. Since, the prosecutrix has not been consistent in her testimony and improved her version on material points, coupled with the STATE VS ASHA RAM FIR NO.271 13 PS ADARSH NAGAR 16 of 17 fact that the FSL result is also in favour of the the accused and there is no other material on record to connect the accused Asha Ram with the alleged offence, I am of the considered view that prosecution has miserably failed to bring home the guilt of the accused beyond reasonable doubt and the defence taken by the accused that he has been falsely implicated in this case by the prosecutrix and his son to grab his property and to extort money from him, seems to be plausible.
58. Accordingly, accused Asha Ram is acquitted of the offence, he was charged with. His personal bond and surety bond are hereby cancelled. His surety is discharged.
59. However, in terms of Section 437 (A) Cr.PC, accused has furnished fresh personal bond in the sum of Rs.10,000/ with one surety of the like amount, which are accepted for a period of six months with the directions to appear before higher court, in the event, he receives any notice of appeal or petition against this judgment.
File be consigned to record room.
Announced in the open Court (Bimla Kumari)
on this 14th day of May, 2018 ASJ : Spl. FTC (North)
Rohini Courts : Delhi
STATE VS ASHA RAM FIR NO.271 13 PS ADARSH NAGAR 17 of 17