Delhi District Court
State vs Manmohan Singh on 30 May, 2013
In the Court of Ms. Kaveri Baweja
Additional Sessions JudgeSpl. FTC2 (Central)
Tis Hazari Courts: Delhi.
Sessions Case No. : 25/13
UID No. : 02401R1224992007
State versus Manmohan Singh
S/o Sh.Harnam Singh
R/o H.No. 752, Ambika
Apartment, Sector14,
Rohini, Delhi.
Case arising out of:
FIR No. : 416/07
Police Station : Karol Bagh
Under Section : 328/376 IPC
Judgment reserved on : 20.05.2013
Judgment pronounced on : 30.05.2013
JUDGMENT
Case of the Prosecution:
As per the case of the Prosecution, on receipt of DD No.21A dated 04.10.2007 W.ASI Veena along with SI Brijsh Mishra reached LHMC hospital, where the Prosecutix 'VL' [name withheld to protect the identity of the Prosecutrix] was found admitted vide MLC No.13088 in an unconscious state.
The case was registered on the basis of the complaint of the Prosecutrix which was recorded on 04.10.2007. She contended in her complaint Ex.PW1/A that she is residing with her mother and brothers for the last 15 years and has one son aged about 15 years. She stated that on 30.09.2007, she saw an advertisement in the newspaper 'Punjab Kesri' regarding vacancy in Navjeevan Pharmacy, 2695, Moolchand Restaurant at IInd floor, Karol Bagh, Delhi. She contacted at the telephone number given in the advertisement on 01.10.2007 and was asked to come for her interview on 03.10.2007. She alleged that on 03.10.2007 she went for the interview and reached the aforesaid place i.e. Navjeevan Pharmacy, 2695, Moolchand Restaurant at IInd floor, Karol Bagh, Delhi at 12:30 PM, where she met one aged Sardarji, whose name was later revealed as Manmohan Singh. He took her interview and during the interview he had put objectionable questions to her relating to her age, figure, height etc. When she objected to the same, he stated that he is asking such questions as the job required active girls. The Prosecutrix stated that she wanted to leave from there, but the accused insisted that she should have some tea and while saying so, the accused left to another cabin to take interview of another girl. After some time, the accused returned and offered her tea.
After consuming the tea, she started feeling uneasy and giddy. After some time, when she opened her eyes, she saw that the accused was doing 'Cherkhani' with her body. She was unable to save herself and again lost consciousness. She does not know as to what happened thereafter.
On the basis of the complaint Ex.PW1/A, a case was registered under Section 328/376 IPC. The Prosecutrix was got medically examined and the exhibits handed over by the examining doctor were taken into police possession. Crime Team and photographer were called at the spot and the spot was got inspected. From the place of occurrence, three towels, one panty, two long hair, some medicines etc. were seized. It is further the case of the Prosecution that the accused was arrested from the hospital where the Prosecutrix was admitted after he was identified by the victim. Pursuant to his arrest, the accused was got medically examined. It is also the case of the Prosecution that the accused refused to give his semen sample. Statement of Prosecutrix was also got recorded under Section 164 Cr.PC during the course of investigation. The exhibits were sent for expert opinion to FSL, Rohini, which was submitted before the court subsequently. The charge sheet was filed after completion of the investigation.
Charges :
After the committal of the case and on the basis of material on record, Accused was charged for offence punishable under Section 376/328 IPC vide order dated 15.05.2008. Accused pleaded not guilty and claimed trial when the charge was read over and explained to him. Prosecution Evidence:
Prosecutrix/Complainant 'VL' was examined as PW1. Her complaint was exhibited by her as Ex.PW1/A. She also correctly identified the Accused before the court.
She deposed that on 30.09.2007, an advertisement came in newspaper 'Punjab Kesri' for job in Navjeevan Pharmacy. On seeing this advertisement she had telephoned on 01.10.2007 at the number which was mentioned in the newspaper whereby she was asked to appear for an interview on 03.10.2007. On 03.10.2007, she after making the telephone call reached at Navjeevan Pharmacy, 2695, above Mool Chand Restaurant, 2nd Floor, Karol Bagh, Delhi. She further deposed that one boy whose name she do not know was present there and he asked her to wait in waiting room. After some time, that boy came to her and offered water to her. After having water she told that boy to get her interview expedited as her child had to return from school and she had to reach home. After some time the boy told me that the Boss is calling her inside. She also deposed that when she went inside, she saw the accused was sitting in white clothes. He offered her to sit and asked her name, her residential address, whether she was married or unmarried and also about the members of her family. She told him that she was married and have one child of 15 years. Accused told her that he do not look like a married or a mother of a child. And further asked her about her height and figure to which she objected. She also said that she do not want to do the job in such a place where obscene questions are asked. The accused replied that it was common to ask such question about figure and height as he wanted an active girl. Accused then asked her to wait on the pretext that he was going to take interview of another candidate in other room and take tea in the meanwhile and finish the interview before leaving. She refused to take tea stating that she had to return home early for her child. However, accused insisted that she should take tea and also finish the interview even if she was not interested in doing the job.
She also deposed that after some time, the accused returned and tea was also brought in the room where she was sitting. She took the tea and immediately after taking the tea, she felt giddy then she sat down. After some time, she feld very uneasy and her limbs became numb. She further deposed that although she was not fully unconscious but since her limbs came down, she found herself helpless and accused was on top of her and she was not even in her full clothes. She also deposed that accused had also taken off his clothes and had sexual intercourse with her. She could not push him since she was unable to do so due to her limbs being numb. When she fully regained consciousness, she found herself in the hospital on the next day. She also deposed that the accused had raped her without her consent.
The Prosecutrix also proved her complaint as Ex.PW1/A and her statement recorded under Section 164 Cr.PC before the ld MM as Ex.PW1/B. The witness has also identified her Salwar and Panty worn by her at the time of alleged incident. The same are Ex.P1 & Ex.P2 respectively.
Smt.Prabha Devi, mother of the Prosecutrix was examined as PW12. She deposed that on 30.09.2007, there was a job advertisement in newspaper for employment in the area of Karol Bagh. Her daughter 'VL' confirmed about the job and was asked to visit the given address on 03.10.2007. She further deposed that on 03.10.2007, her daughter 'VL' left alone for interview for the aforesaid job in the area of Karol Bagh and while leaving the house, she left behind the address of the concerned office and its phone number where she was to appear in interview. At 1 PM, she made a phone called on the mobile phone which was with her daughter.
She replied that her turn for interview was yet to come. Further, at about 2 PM, she again made a phone call on the mobile phone of her daughter 'VL' and she replied that interview was still going on and that she would reach home soon after the interview was over. At 2:30 PM, she again made a phone call on the mobile phone of her daughter. There was dial tone but no reply. She further deposed that at 3 PM, she again made a phone call to her daughter on her mobile but found her mobile phone lying switched off. Her daughter did not return home till 5 PM. She got worried and contacted her elder son Dinesh Singh Negi on phone and told him about nonreturn of the Prosecutrix. At about 6 PM, her younger son Vinod Singh Negi returned home. She also told him about nonreturn of her daughter.
PW12 further deposed that she accompanied her son Vinod Singh Negi to Moolchand Restaurant, where they found Dinesh Singh Negi present on the ground floor and all three of them went upstairs to the office where prosecutrix had come to interview. The office was lying closed. A lady came there and inquired from us about their presence. The witness apprised her of the aforesaid facts and that they were looking for the office of Jeevan Pharmacy. That lady told that Jeevan Pharmacy was being run by her husband. Then they inquired about her daughter. The said lady replied to the witness that they were telling a lie as no one had come there for interview.
The witness further deposed that her elder son asked for opening of the office and by that time, Ranjit Singh, friend of her son Dinesh Singh Negi also reached there. They raised hue and cry and pushed the door of Jeevan Pharmacy and succeeded in opening the door. On entering the office, they found that the accused was present there in naked condition and under intoxication. They also found Prosecutrix lying on the other side in naked condition on a sofa. She got perplexed. She searched out clothes of her daughter and made her to wear the same in the condition she was. Wife of the accused made the accused to wear clothes. At that time, some family members of the accused reached there and started making request with folded hands not to blow air to the matter.
The witness also deposed that brother of the accused told them that they had their residence on Jail Road and the Prosecutrix could be taken to some doctor there for medical checkup. Her son Dinesh Singh Negi rather asked to call the police. Accused and his family members started threatening them and also wrongfully confined them there. However, her son Dinesh Singh Negi and his friend Ranjit Singh managed to escape at about 10/10:30 PM and reached the police station and later returned to the office of Jeevan Pharmacy in the company of the poilce. However, wife of the accused managed to escape taking her husband and some articles along from there. Her daughter was taken to LHMC hospital where she was declared unfit to make statement.
PW12 further deposed that on 04.10.2007, her daughter regained consciousness. Police recorded the statement of her daughter 'VL' and while her statement was being recorded she cried all of a sudden. They found that accused had came there. The police accordingly, arrested him. She also deposed that accused disclosed that he had come there to see whether her daughter 'VL' is making statement in his favour or not.
Sh.Dinesh Singh Negi, being the elder brother of the Prosecutrix stepped into the witness box as PW9, who deposed that the Prosecutrix was residing with them since 1992 and was married with Sh.Ved Parkash Sharma in the year 1991 and is having one son. About 1011 months after her marriage, his sister 'VL' came to the parental house due to matrimonial dispute and started residing with them and for the last 45 years his sister 'VL' started doing one or the other job. He further deposed that on 03.10.2007 when he was present in his office in Gautam Nagar at about 5 PM, he received a call from his mother that his sister had gone for some interview and till 5 PM she had not returned. His mother also informed him that the mobile phone of his sister was also replying as switched off. Then his mother provided to him the phone number and address of Navjeevan Pharmacy, Karol Bagh, near PS, where his sister had gone for interview on that day. Upon making phone calls at the phone number of his sister and the Navjeevan Pharmacy, he did not get any reply from any of the two phone numbers. He then told his mother that he is leaving for the given address and reached the given address of Navjeevan Pharmacy at 7 PM. He further deposed that the office was situated at the IInd floor of the building. He then came downstairs and reached the ground floor and in the meanwhile, his mother Smt.Prabha Devi and his younger brother Vinod Singh Negi reached there. Then all of them reached in front of the aforesaid office, shutter of which was lying opened. He also deposed that while was coming downstairs, he noticed one lady going upstairs and coming downstairs repeatedly, who was the wife of the accused. When they were standing in front of the aforesaid office, the wife of the accused inquired from them about their presence there, which he explained. Thereupon, wife of the accused replied that it was the office of her husband and that his sister i.e. the Prosecutrix had not come there.
The witness further deposed that his friend Ranjit Singh Sandhu, whom he had made a phone call also reached in the meanwhile. They he asked the wife of the accused to open the wooden door to which she replied that she was not having its key. Thereupon, they started pushing the door and upon opening of the door, they found that that there was gallery followed by a door but that door was lying closed. They pushed the door and got it opened and found that the accused was sitting in a chair and a table was lying in front of him. He was in naked condition at that time. They also found Prosecutrix lying in an unconscious condition on a sofa nearby, who was also in naked condition.
PW9 further deposed that he was going to make a call to the police but wife of the accused begged for not calling the police. 45 family members of the accused reached there. The witness again tried to make a call to the police but he was not allowed to do so. The wife of the accused started giving water to the Prosecutrix so that she could vomit and regain consciousness. Brother of the accused then suggested that the Prosecutrix be taken to his house situated at Jail Road, Tilak Nagar, Delhi so that she may be got medically treated from a doctor present near that house. A scuffle took place between the family members of the accused and the witness and his family members. The witness further deposed that he and his friend Ranjit Singh managed to escape from the office and reached PS Karol Bagh and returned to the spot in about 15 minutes in the company of the police. The witness also deposed regarding the factum of taking of her sister to the LHMC where statement of his sister was recorded on 04.10.2007 at 7 PM (Ex.PW1/A) which bears his attestation at point B. The witness also deposed regarding the arrest of the accused from LHMC on 04.10.2007 from LHMC in his presence and proved the arrest memo as Ex.PW9/A. Ranjeet Singh Sandhu stepped into witness box as PW8. He deposed that on 3.10.2007 at about 6 PM or 6:30 PM, he was present at his residence. Vinod called him and informed him that his sister 'VL' had gone for interview at Navjeevan Pharmacy in the morning and till 6 PM or 6:30 PM she had not returned. The brother of the Prosecutrix Vinod called him at at Navjeevan Pharmacy and he accordingly reached there at 7 or 7:30 PM. Outside the pharmacy on the road his friend Vinod was standing with his brother Dinesh and Mother Prabha Devi. This witness more or less deposed in consonance with the PW9 Dinesh Singh Negi as he was accompanying them at the time of the alleged incident.
PW5 is Sh.Siddharth Sharma, ld.MM, who deposed regarding the recording of statement under Section 164 Cr.PC of the Prosecutrix (Ex.PW1/B) on 10.10.2007 being the link MM to the court of Sh.Ashutosh Kumar, ld. MM. He also deposed having appended his certificate in this regard as Ex.PW5/B. Alok Aggarwal being the Director of Chandel Advertising Pvt. Ltd. was brought into the witness box as PW13, who deposed regarding placing of an advertisement for the post of female helper, five field boys and peons by his client viz., Navjeevan Pharmacy, 2695, Mool Chand Restaurant, Karol Bagh, Delhi on 28.09.2007, which was got published in Punjab Kesri issued of 30.09.2007 vide invoice No.1585 and proved the same as Ex.PW13/A. PW2 Dr.Neeraj Kumar appeared in place of Dr.Aditya, who prepared the MLC No.13108 Ex.PW2/A of accused Manmohan Singh on 04.10.2004 and is stated to have left the hospital and his whereabouts were not known. The witness identified the signatures of Dr.Aditya at point 'A'. Dr.Saloni Sharma was brought into the witness box as PW3. She deposed regarding the potency of the accused when the accused was examined by her on 05.10.2007 vide MLC No.13108 and proved the same as Ex.PW3/A. However, as per record the witnesses was not crossexamined by the accused. Subsequently, in view of request of the ld. Predecessor, the said witness namely PW3 Dr.Saloni Sharma was dropped vide order dated 13.08.2012. In these circumstances, it cannot be disputed that the testimony of PW3 cannot be read in evidence. The effect thereof shall be discussed in subsequent paragraphs of this judgment.
PW15 Dr.Niraj Kanaujia deposed regarding examination of the Prosecutrix on 03.10.2007 vivde MLC No.13088 and CR No.56961. This witness also deposed that the patient was brought by ASI Brijesh Kumar with alleged history of unknown poisoning, assault? and rape. On examination, he found that the patient was conscious, oriented and dizzy. He also declared the patient unfit for statement and proved the MLC as Ex.PW15/A. He referred the Prosecutrix to Medicine Department, Obstt. & Gyne. On the other hand, PW16 Dr.Rashmi deposed that while she was posted as Sr.Gyne/Obstt. at LHMC, she examined the Prosecutrix 'VL' at about 12:10 AM and found her conscious and oriented. She also deposed that after taking the consent of Prosecutrix, she examined her and found that there were no sign of external injuries and her UPT found negative. She also deposed regarding taking of the blood samples, hair clipping, pubic hair, undergarments and external and internal vaginal swab of the Prosecutrix and handing over the same to SI Brijesh Mishra. This witness also proved the carbon impression of her aforesaid findings on the back of MLC Ex.PW15/A as Ex.PW16/A. PW6 is HC Dinesh Kumar, who being the Duty Officer deposed regarding recording of FIR and proved the same as Ex.PW6/A having his endorsement on the same as Ex.PW6/B. While PW14 Ct.Dinesh Kumar is the photographer who deposed regarding taking of 17 photographs at the instance of IO/SI Brijesh Mishra of the place of incident on 04.10.2007 and proved the same as Ex.PW14/A1 to Ex.PW14/A17 and their negatives as Ex.PW14/A18 (Colly).
PW4 is Insp.Yashpal Singh deposed that on 04.10.2007 while posted at IC Crime Team, Central District, Paharganj, on receipt of information from PS Karol Bagh, he along with crime team reached the place of incident at Navjeevan Pharmacy and in the presence of IO inspected the place of occurrence and got the spot photographed through Ct.Dinesh Kumar. He proved his detailed report vide Ex.PW4/A. HC Ramkhiladi was examined as PW7, who deposed regarding deposit of the case property by SI Brijesh Kumar Mishra and sending the same to FSL Rohini through ASI Veena.
Insp.Brijesh Kumar was brought into the witness box as PW10. He deposed that on the instructions of SHO PS Karol Bagh, he went to the place of incident at Navjeevan Pharmacy along with Ct.Bharat Bhushan where many persons including the victim 'VL' were found present. The victim was lying unconscious with her mother. The owner of the office i.e. the accused and his family members were also present there. The witness further deposed that he along with victim 'VL' and her brother Dinesh Kumar went to LHMC leaving Ct.Bharat Bhushan at the spot to secure the scene of occurrence. He further deposed regarding the conduction of medical examination by the doctor and seizure of the seven parcels received from the doctor vide memo Ex. PW10/A and deposit of the same with the MHC(M) vide DD No.3B.
He further deposed regarding recording of the statement of Prosecutrix by ASI Veena, consequent upon her being declared fit by the doctor and also deposed regarding arrest of the accused at the pointing of the Prosecutrix vide arrest memo Ex.PW9/A and proved the personal search memo of the accused vide memo Ex.PW10/A. Ct.Bharat Bhushan was examined as PW11 who deposed that on 03.10.2007 while he was posted at PS Karol Bagh one Dinesh accompanied by Ranjit Singh came to the PS. Thereafter, he along with SI Brijesh Mishra reached the spot where they found one lady was lying unconscious there, who was taken by her mother, brother Dinesh, Ranjit Singh in the company of SI Brijesh Mishra to LHMC Hospital. He also deposed that SI Brijesh Mishra locked the main door of the Navjeevan Pharmacy and he returned to the PS Karol Bagh.
This witness further deposed that on 04.10.2007 he again reached Navjeevan Pharmacy and SI Brijesh Mishra along with W.ASI Veena and a photographer reached there and on opening the lock of the Navjeevan Pharmacy by SI Brijesh Mishra, the photographer took photographs of the place of incident. This witness further deposed regarding collection of towel, hair, undergarments, some medicines, some nagazines and note pads from the place of incident and seizure of the same vide recovery memo Ex.PW11/A. This witness correctly identified the case property when shown to him and proved the same as Ex.PX1 (three towels), Ex.P2 (Panty), Ex.PX2 (hair strands), Ex.PX3(Colly) (sealed parcel containing one magazine, one note pad and one register) and Ex.PX4 (Colly.) (one strip of Vigorex, one strip of Pallrywyin, one packed bottle of vanarivati, two strips of Matosine and one packet of Kohinoor).
PW17 is SI Veena who was entrusted with DD No.3B along with the MLC of the Prosecutrix by SI Brijesh Mishra on the intervening night of 0304.10.2007. She along with SI Brijesh Mishra reached LHMC Hospital, where Prosecutrix, her m other, two brothers and one friend of her brother namely Ranjit Singh were present there. She further deposed that Prosecutrix 'VL' was lying on a bed in an unconscious condition and was declared unfit for statement by the doctor. On the directions of SI Brijesh Mishra, she went to the place of incident where she met Ct.Bharat Bhushan and inspected the spot and called the crime team.
This witness further deposed regarding seizure of the case property from the spot vide seizure memo Ex.PW11/A and recording of the statement of Prosecutrix upon her declared fit for statement by the doctor at 6:15 PM and proved the same as Ex.PW1/A. She also proved the rukka which was prepared by her as Ex.PW17/A on the basis of which FIR was got registered by SI Brijesh Mishra.
She further deposed about the arrest of the accused who was present at the hospital upon being pointing out by the Prosecutrix to be the same person who had committed rape upon the Prosecutrix vide arrest memo Ex.PW9/A. This witness also proved the factum of medical examination of the accused vide MLC Ex.PW2/A and Ex.PW3/A on 05.10.2007, recording of the statement under Section 164 Cr.PC of the Prosecutrix by the ld. MM on 10.10.2007, preparation of site plan vide Ex.PW17/A1 and collection of FSL report and report of Biology Division vide Ex.PW17/B and Ex.PW17/C respectively.
Whereas, PW18 is Ms.Anita Chhari, Sr.Scientific Officer (Biology), FSL Rohini, who deposed that on 06.11.2007, 12 parcels were received in the office vide letter No.129/SHO Karol Bagh. She examined all the exhibits received in the office and prepared report Ex.PW17/B and after examination, she found that human semen was detected on the following articles/exhibits :
(i) Exhibit 3a Cotton wool swab on a wooden stick labelled as 'Ext.smear', kept in an injection vial.
(ii) Exhibit 3b - Cotton wool swab on a wooden stick labelled as 'Int.
smear', kept in an injection vial.
(iii) Exhibit 3c - A few strands of black hair labelled as pubic hair, kept in an injection vial.
(iv) Exhibit 3e - One microslide having faint smear labelled as 'Ext.
Vaginal swab'.
(v) Exhibit 3f One microslide having faint smear labelled as 'Inter.
Vaginal swab'.
(vi) Exhibit 4 - One Salwar
(vii) Exhibit 10a - One towel having few dirty stains.
She also prepared the Biology Report and proved the same as Ex.PW17/C. This witness also correctly identified all the exhibits which were shown to her at the time of her examination and stated that the said exhibits were examined by her and human semen were detected on all those exhibits.
It may be pertinent to mention here that on going through the record, it is noticed that there is mention of statement under Section 161 Cr.PCof the Prosecutrix in various orders including order dated 14.01.2008 passed by my ld. Predecessor. During the course of proceedings, it was inquired from the IO/W.SI Veena whether any statement of the prosecutrix was recorded under Section 161 Cr.PC during the course of investigation or not. The IO stated before the court on 28.05.2013 that no statement under Section 161 Cr.PC of the Prosecutrix was recorded by her during the course of investigation. Her statement to this effect has been recorded separately in the court on 28.05.2013 itself.
Plea of the Accused & defence evidence :
The evidence on record was put to the Accused in his statement recorded under Section 313 CrPC. In his said statement he pleaded innocence and stated that no such incident took place as stated by the Prosecutrix on 03.10.2007. He further stated that after conclusion of interviews, he left for his home at 6 PM and at about 88:30 PM, police constable reached his home and he accompanied him. He was taken to PS Karol Bagh and in the PS, his office key was taken from him. He also pleaded that on 03.10.2007, he remained in the PS throughout the night and he was falsely implicated in this case.
The accused examined two defence witnesses in his defence. Smt.Gurjeet Kaur, the wife of the accused was examined as DW1. She deposed that in the year 2007, she was employed as Administrative Officer, Income Tax Office, ITO, Delhi and used to go to office by chartered bus and also return home after work by chartered bus. She further deposed that on 03.10.2007, she went to her office and returned as usual by chartered bus by 77:30 PM. By that time her husband had also returned home from work and at about 8:30 PM a policeman came to their home from PS Karol Bagh and took her husband with him to the PS stating that SHO PS Karol Bagh has called him. Her husband was also asked to take the keys of his office along with him. She called her husband on his mobile phone after waiting for him for some time who told her that he is being falsely implicated in a case. She further deposed that her husband was detained in the PS on that day and subsequently arrested on the next day.
DW2 is Mann Singh who deposed that he know the accused since year 2006 and that the address of the office of the accused is 2690, Deshbandhu Gupta Road, Karol Bagh, New Delhi situated on the IInd floor of the aforesaid address. He further deposed that his workshop has two offices which are situated on the left as well as on the right of the office of the accused and on 03.10.2007 he had gone to the workshop as usual and he fund 78 candidates including 23 girls for interview standing outside accused's office. He also deposed that the way to the office of the accused is the same which is being used by him for going to his workshop and is having only one staircase. He also deposed that the timings of his workshop is from 10:30 AM to 7:30 M, however, at times many workers even stay in night in the workshop. He also deposed that the accused used to come generally at 1010:15 AM and used to leave his office at about 6 PM and on 03.10.2007 also accused came at the same time and left the office by almost the same time i.e. 6 PM. His workshop is separated from the office of accused by wooden partition. He further deposed that on 03.10.2007 none of his employees were present in the workshop at the night and on 04.10.2007 office of the accused was closed and that in the office of accused Rajesh and Vijay used to work. He further deposed that on 04.10.2007 none of these workers of accused came to the office and on inquiry he could not come to know why the office is closed.
Arguments:
I have heard arguments of Defence as well as Prosecution in the light of the evidence on record and considered the relevant case law cited before me in support of respective arguments.
It was argued by ld. APP that the Prosecutrix PW1 in her examinationinchief categorically deposed before the court that she was raped by the accused after being administered tea which was laced with some intoxicating/stupefying substance. Learned APP contended that the testimony of the Prosecutrix clearly brings out the role of the accused, who had admittedly taken the interview of the Prosecutrix in his office on the date of incident i.e. 03.10.2007. It was further argued that the Prosecutrix PW1 also correctly identified her 'Panty' Ex.P2 which was seized from the office of the accused vide seizure memo Ex.PW11/A. Ld. APP further argued that as per the MLC of the Prosecutrix Ex.PW15/A, the Prosecutrix at the time of her medical examination was found to be dizzy and unfit for statement. In this regard, reliance was also placed upon the deposition of PW15 Dr.Neeraj Kanaujia, who deposed before the court that on examination he found the patient conscious, oriented and dizzy and prepared the MLC Ex.PW15/A. In his cross examination the examining doctor i.e. PW15 clarified the term 'dizzy' and denied the suggestion that the term 'dizzy' is totally opposite to the term 'Conscious and Oriented'. Learned APP, hence, argued that from the testimony of the PW15 and the MLC of the Prosecutrix, it is apparent that she was in a dizzy state and unfit for making statement and this establishes the case of the Prosecution that she was administered some intoxicating substance as alleged by her in her complaint Ex.PW1/A. It was further contended that as per the FSL report Ex.PW17/B, human semen was detected on the external and internal smear of the Prosecutrix besides her pubic hair, internal and external vaginal swabs, her Salwar (which she identified during the trial) and from one of the Towels, which were seized from the place of occurrence i.e. the office of the accused. It was argued that the presence of the human semen on the aforesaid articles including the Salwar and private parts of the Prosecutrix also lend credence to the case of the Prosecution and establish the guilt of the accused beyond reasonable doubt.
It was argued that noticeably human semen was found on the Salwar of the Prosecutrix which was seized by the examining doctor, whereas her Panty (Ex.P2) which was left in the office of the accused was seized vide seizure memo Ex.PW11/A, was not found having any semen stains.
It was further argued that the absence of any evidence to prove that the human semen found present on the Salwar of the Prosecutrix was that of the accused is irrelevant keeping in view the testimony of the Prosecutrix 'VL', where she narrated the entire incident and also correctly identified the accused. The presence of human semen on the Salwar of the Prosecutrix is thus stated to be a strong corroborative piece of evidence. In this regard reliance was placed on the judgment titled as Madan Lal vs. State of J & K, AIR 1998 SC 386.
Learned APP also argued that as per the deposition of PW12 Prabha Devi, mother of the Prosecutrix, she remained in touch with the Prosecutrix till about 2 PM when she made phone call to her at the mobile phone of the Prosecutrix, who informed that the interview was still going on. Subsequently, however, she was unable to contact the Prosecutrix on her mobile phone which gave her a cause to worry about her daughter. It was contended by ld. APP that the Prosecutrix, as per the depositions of PW8 Ranjeet Singh Sandhu, PW9 Dinesh Singh Negi and PW12 Smt.Prabha Devi, was found at the office of the accused at about 7 PM on 03.10.2007. Moreover, PW11 Ct.Bharat Bhushan, who also reached the place of occurrence along with the brother of the Prosecutrix Dinesh Singh Negi and his friend Ranjeet Singh Sandhu found Prosecutrix in the office of the accused. The testimony of the PW10 Insp.Brijesh Kumar discloses that when he reached the office of the accused, the Prosecutrix was found lying unconscious in the office of the accused.
Ld. APP also contended that from the deposition of the aforesaid Prosecution witnesses it has also been borne out that the relatives of the accused along with the wife of the accused were also present there when they reached there and that there is no other justification that the presence of the Prosecutrix in the office of the accused nor any such justification has been brought forward by the accused.
During the course of arguments, ld. APP further pointed out that as per the testimony of the PW2 Dr.Neeraj Kumar, Dr.Aditya had medically examined the accused on 04.10.2007 and the accused had refused to give his semen sample. It was contended that keeping in view this fact, an adverse inference must be drawn against the accused.
It was thus argued that the evidence led on record by the Prosecution clearly points out towards the guilt of the accused and the allegations against him stand prove beyond reasonable doubt.
On the other hand, the defence vehemently opposed the case of the Prosecution and contended that neither the charge of Section 376 IPC, nor the charge of Section 328 IPC is made out against the accused in the light of the evidence on record.
The foremost contention of the defence was that the testimony of the Prosecutrix is full of embellishments and improvements and is not worthy of reliance. My attention was drawn to the crossexamination of the Prosecutrix PW1 which was recorded on 10.03.2011 and 01.09.2011. It was contended that the Prosecutrix was confronted with her complaint (Ex.PW1/A) and her statement recorded under Section 164 Cr.PC (Ex.PW1/B) wherein she admittedly did not state anything about the accused having raped her on 03.10.2007.
Learned defence counsel hence argued that the Prosecutrix upon stepping in the witness box nowhere whispered about the fact that the accused had raped her. In her complaint Ex.PW1/A as well as statement under Section 164 Cr.PC Ex.PW1/B the Prosecutrix alleged that she found that the accused was doing 'Cherkhani' with her body. It was contended that in view of the fact that the Prosecutrix has improved upon her earlier versions, for which no explanation has even been put forth on record, accused cannot be convicted for the offence of rape on the basis of the said deposition of the Prosecutrix.
It was further argued by learned defence counsel that though as per the MLC Ex.PW15/A and the testimony of the PW15 Dr.Neeraj Kanaujia, the Prosecutrix was found to be conscious, oriented, dizzy and unfit for statement when she was brought to the hospital at 11:20 PM, yet as per the report of the Gynecologist Ex.PW16/A (at the back of MLC Ex.PW15/A), the Prosecutrix was examined by the Gynecologist at about 12:10 AM. At the time of her said examination at 12:10 AM on 04.10.2007 she was found conscious and oriented. Learned defence counsel also pointed out that the PW16 Dr.Rashmi in her cross examination recorded that the Prosecutrix had her last menstruation period (LMP) on 15.09.2007. It was contended that this information could have only been given by the Prosecutrix herself and the fact that she gave this information to the examining doctor also indicates that she was in a fit state of mind. It was contended that the argument of the Prosecution that the Prosecutrix was unfit for statement till 04.10.2007 is hence falsified.
The next contention of the defence is that as per the report Ex.PW16/A, the exhibits which were handed over by the examining doctor who examined the Prosecutrix included her undergarments besides her nail clipping, public hair, her internal and external vaginal swab and blood sample. It was contended that though as per the said report of the doctor, the undergarments of the Prosecutrix were handed over to the police. The seizure memo Ex.PW10/A shows at Srl.No.5 that it is the Salwar of the Prosecutrix which was seized and which does not find mention of any undergarment of the Prosecutrix. Learned defence counsel argued that the Prosecution has failed to establish its case that the doctor had seized the Salwar of the Prosecutrix and not her undergarment in view of the noting as recorded in MLC Ex.PW16/A. The said discrepancy, as per the argument of the defence, is fatal to the case of the Prosecution as the undergarment seized as per report of examining doctor was not found to contain any semen stains.
Besides the aforesaid, learned defence counsel further argued that as per FSL report of the Biology Division Ex.PW17/C, only the towel which was seized from the place of occurrence was found to be containing semen stains of 'B' Group. However, there is nothing on record to indicate that the semen is that of the accused. It was contended that the semen stains found on the private parts of the Proescutrix, her Salwar and Towel seized from the place of occurrence can hence be not connected to the accused as there is no scientific evidence to support the case of the Prosecution.
The next argument raised by the learned defence counsel with regard to the charge of Section 376 IPC is that the Prosecution has completely failed to establish the basic fact that the accused was capable of performing sexual intercourse. It was pointed out that PW3 Dr.Saloni Sharma, who had conducted the medical examination of the accused with regard to his potency was examined on 20.01.2010 when her cross examination was deferred at the request of the accused. The witness was not produced in the witness box thereafter. It was contended that as per record, PW3 was reported to have left the services of LHMC hospital. Dr.Praveen who was deputed in her place was also discharged unexamined vide order dated 31.05.2012 as he stated before the court that he had never seen Dr. Saloni signing and writing. It was further contended that vide order dated 13.08.2012, in view of submissions of ld. APP, the name of Dr. Saloni was ordered to be struck off from the list of witnesses. Learned defence counsel, also argued that the accused in his statement recorded under Section 313 Cr.PC, in response to question No.21, has clearly stated that his potency test was not conducted. It was contended that it was incumbent upon the Prosecution to establish the potency of the accused in order to sustain the charge of Section 376 IPC and in absence of such evidence, the accused cannot be convicted for having committed rape upon the Prosecutrix.
Extending his arguments further, learned defence counsel drew my attention towards the provisions of Section 53 A (2) Cr.PC, which lays down that the Registered Medical Practitioner conducting medical examination of a person accused of rape shall examine such person and prepare the report of his examination giving the following particulars:
(i) .......
(ii) .......
(iii) .......
(iv) the description of material taken from the person of the
accused for DNA profiling, and
(v) .......
It was argued that despite the said amendment having been incorporated in the Code of Criminal Procedure w.e.f. 23.06.2006 by the Amendment Act 25 of 2005, the Investigating Agency failed to bring on record any evidence with regard to the DNA profile of the accused. Learned defence counsel thus argued that there is no material on record on the basis of which the accused can be convicted for offence punishable under Section 376 IPC and submitted that accused is falsely implicated in this case. In support of his arguments, learned defence counsel relied upon the following judgments of the Hon'ble Supreme Court :
(i) Krishan Kumar Malik vs. State of Haryana (2011) 7 SCC 130.
(ii) Tameezuddin @ Tammu vs. State of (NCT) of Delhi, 2009 (12) SCALE 303.
With regard to the offence punishable under Section 328 IPC, it was argued that by learned defence counsel that the case of the Prosecution that the Prosecutrix had been administered some sedative or intoxicating substance by the accused has not been proved on record. It was contended that besides the fact that the Prosecutrix was found to be dizzy as per her MLC Ex.PW15/A, there is no material on record to establish that she was administered some stupefying or intoxicating substance by the accused as alleged.
Learned defence counsel again reiterated that at the time of her gynecological examination, the Prosecutrix was found consciousness and oriented by the examining doctor PW16 Dr.Rashmi vide Ex.PW16/A. He further pointed out that as per the IO/ASI Veena (PW17) she had sent exhibits to the FSL vide two forwarding letters both dated 05.11.2007, copies of which are exhibited as Ex.PW17/DB and Ex.PW17/DC. It was pointed out that as per letter Ex.PW17/DB the 'Gastric Layce' of the Prosecutrix which were handed over by the doctors of LHMC during the medical examination of the victim was sent to FSL. The 'Gastric Layce' of the Prosecutrix is mentioned as Ex2 in the forwarding letter Ex.PW17/DB.
The defence, thereafter, drew my attention to the report of the FSL, Rohini dated 10.04.2008, which was not exhibited by the Prosecution during the course of trial and submitted that the reason for omitting of this document is apparent. Learned defence counsel pointed out that as per the said FSL result, Ex.2 (i.e. the 'Gastric Layce' of the victim) sent for analysis to FSL, Rohini was not found containing any poisonous substance. As per the result of the examination, it was opined by the FSL that "On Chemical, Thin Layer Chromatography & GCMS examination, barbiturates, phenothiazines, alkaloids and benzodiazepines could not be detected in exhibit 'Ex2." For the purpose of identification, the said report of the FSL dated 10.04.2008 is now exhibited as Ex.C1.
Learned defence counsel also relied upon the judgment of the Hon'ble High Court titled as Santosh Kumar vs. State in Crl.Appl.No.12 of 2000 (Delhi High Court), in support of his arguments that in the light of the aforesaid evidence and for want of any medical evidence, the offence under Section 328 IPC cannot be stated to have been committed by the accused.
Lastly, the argument of defence with regard to the refusal to give semen sample is that the accused stated in his statement recorded under Section 313 Cr.PC in response to Question No.21 that during the proceedings the accused had filed an application that he is ready and willing to give his semen sample and that he never refused to gave his semen sample as alleged and no adverse inference can be drawn against him because of the said reason.
Analysis : Findings : Reasons:
I have considered the aforesaid arguments, evidence on record and the relevant case law cited before me during the course of arguments by the Prosecution as well as by the defence. From a perusal of the evidence on record, I find that there are certain admitted facts, which may be enumerated as under:
(a) The accused admits that he was running his office of 'Navjeevan Pharmacy' at 2695, above Moolchand Restaurant, IInd floor, karol Bagh, Delhi.
(b) He also does not dispute that he had placed an advertisement on 30.09.2007 in the newspaper 'Punjab Kesri' for job in 'Navjeevan Pharmacy', which was got published by him through PW13 Alok Aggarwal upon payment of Rs.275/ vide invoice Ex.PW13/A and the said agreement is Ex.PW13/B.
(c) It is also an admitted fact that the Prosecutrix had applied for the same and that she came to the office of the accused for the interview on 03.10.2007.
The facts which have been proved by the Prosecution during the trial may also be enumerated as under: From the statement of the accused recorded under Section 313 Cr.PC and the deposition of the Prosecution witnesses, it has been established that the Prosecutrix in response to the advertisement placed by the accused went to his office for an interview on 03.10.2007. Though, the accused in response to Question Nos.3 & 5 in his statement recorded under Section 313 Cr.PC has stated that the Prosecutrix reached his office for interview at about 1010:30 AM and left after the interview within half an hour of the conclusion of the interview, yet I find on going through the statements of Prosecutrix (PW1), Ranjeet Singh (PW8), Dinesh Singh Negi (PW9), Insp.Brijesh Kumar (PW10), Ct.Bharat Bhushan (PW11) and Smt.Prabha Devi (PW12) that the Prosecutrix was very much present in the office of the accused atleast till after 11 PM when Insp.Brijesh Kumar (PW10) and Ct.Bharat Bhushan (PW11) reached the office of the accused. PW8 Ranjeet Singh Sandhu, PW9 Dinesh Singh Negi and PW12 Smt.Prabha Devi have categorically deposed before the court that they reached the office of the accused at about 7 PM and found the Prosecutrix present there in an unconscious and naked condition. They also found the accused present in his office and he was also without clothes.
The defence examined the wife of the accused Smt.Gurjeet Kaur as DW1 to disprove this fact. She deposed that on 03.10.2007, she went to her office and returned home by 77:30 PM and by that time her husband returned from work. The defence witness however failed to produce any documentary proof regarding her attendance of office to show her timings or to establish that the accused was not at his office at 7/7:30 PM on the said day. It is also not the case of the accused that though he alleges his false implication, he lodged any complaint against any police official before the court of law or any other authority with regard to his alleged false implication. From the depositions of the Prosecution witnesses, on the other hand, I am satisfied that the Prosecution has been able to establish the presence of the Prosecutrix in the office of the accused on 03.10.2007 when they reached there i.e. at about 7 PM.
At this juncture, it may also be relevant to peruse DD No.3B dated 03.10.2007 Ex.PW10/B, which was recorded at the instance of Dinesh Singh Negi, the brother of the Prosecutrix, who also claimed that his sister is lying in the office of the accused when he reported the matter to the police. Though, in Ex.PW10/B, it has been recorded that no eye witness has met at the spot, not much importance can be attached to the same in view of the fact that as per the contents of DD No.3B itself no clear facts could be ascertained at the place of occurrence and no eye witness was present there. The contents of the DD No.3B, in my view, rather support the case of the Prosecution inasmuch as the Prosecutrix at that time was not in a fit condition to reveal the facts and the family members of the Prosecutrix, who reached there after the occurrence, had not witnessed the incident in question and it is because of this reason that no clear facts were available at that time nor any eye witness was found at the spot.
The facts which hence emerges from the aforesaid discussion is that the Prosecution has been able to establish the presence of the Prosecutrix in an unconscious and naked condition in the office of the accused from after 7 PM till about 11 PM when the police reached the place of occurrence.
It would also relevant at this juncture to observe that the delay in giving the information to the police also apparently arose due to the fact that as per the depositions of PW8 Ranjeet Singh Sandhu, PW9 Dinesh Singh Negi and PW12 Smt.Prabha Devi, the family members of accused including his wife, were pleading with them not to report the matter to the police. The presence of the relatives and wife of the accused at the place of occurrence has also been corroborated by the depositions of PW10 Insp.Brijesh Kumar and PW11 Ct.Bharat Bhushan who reached the spot upon receipt of information regarding the incident in question. Hence, the accused, in these circumstances cannot be held entitled to the benefit of delay in reporting the matter to the police.
The testimonies of the aforesaid Prosecution witnesses coupled with the MLC of the Prosecutrix Ex.PW15/A also establishes that the Prosecutrix was dizzy when she was brought to the hospital at 11:20 PM. I find myself unable to accept the arguments of the defence that since as per the report of the Gynecological examination Ex.PW16/A, the Prosecutrix was conscious, oriented and was able to disclose the date of her Last Menstrual Period (LMP) and she was in a fit state of mind to give her statement. From the report Ex.PW16/A, it is apparent that probably the Prosecutrix was able to respond to the query with regard to her LMP. This, however, cannot be stretched to imply that she was fit to make statement.
I also find on going through the testimony of the Prosecutrix PW1 in its totality that she has clearly improved upon her earlier versions i.e. her complaint Ex.PW1/A and her statement recorded under Section 164 Cr.PC Ex.PW1/B. In both the said earlier versions, the Prosecutrix admittedly did not mention that the accused committed rape upon her. The only allegation in her earlier versions is that the accused was doing "Cherkhani" with her body. However, it is important to note that during her crossexamination recorded on 20.03.2010, the Prosecutrix admitted before the court that "I had not mentioned in my statement under Section 161 Cr.PC that accused had removed my panty and salwar and his pant and underwear and was having sexual intercourse with me but I had stated that accused had done 'Chedhad' with my body".
From the aforesaid crossexamination of the Prosecutrix, it is hence apparent that she has reiterated her earlier versions made in complaint Ex.PW1/A and statement under Section 164 Cr.PC Ex.PW1/B that the accused was doing 'Cherkhani' with her body. The fact that the Prosecutrix admitted her earlier versions in her crossexamination to this extent, in my opinion, certainly establishes the case of the Prosecution to the extent that the accused was doing 'Cherkhani' with her body as alleged by her in her complaint Ex.PW1/A and statement Ex.PW1/B. From the aforesaid deposition of the Proescutrix, coupled with the fact that her Panty Ex.P2 was found lying in the office of the accused which was seized vide seizure memo Ex.PW11/A, the presence of semen on her pubic hair, her external and internal vaginal swab and her salwar clearly establishes the case of the Prosecution to the aforesaid extent.
In a recent judgment titled as Mumtaz vs. State (Crl.A.No. 214/2011) pronounced on 22.05.2013, the Hon'ble High Court of Delhi dealt with the question whether improvements made by a witness during examination before the Court which has the effect of changing the entire case of the Prosecution, can be made basis of conviction for an offence which was never complained of or revealed to have been committed through medical examination or investigation. It was also observed by the Hon'ble High Court in the said case that the court should not carried away by the heinous nature of the crime and lose sight of the basic principles underlying criminal jurisprudence that only legally admissible evidence can made basis of conviction. The present case, however, is clearly distinguishable on facts.
I have also considered the judgment of Madan Lal (Supra) relied upon by the Prosecution in support of the arguments that in the absence of evidence to connect the presence of human semen found on the clothes of the Prosecutrix of the accused, would not be fatal to the case of the Prosecution. A careful perusal of the case of Madan Lal (Supra) would reveal that in the said case the Prosecutrix had narrated the entire incident of rape during her deposition before the court. It was in these circumstances that the Hon'ble Apex Court observed that even it has not been established that human Spermatozoa was that of an accused, considering the evidence of the Prosecutrix, who gave the entire account of the incident, the presence of human semen on the clothes of the Prosecutrix was held to be corroborative piece of evidence to the version of the Prosecutrix. The present case, however, stands on a different footing. The deposition of the Prosecutrix with regard to the allegations of rape has been found to be an improvement upon her earlier versions and hence the fact that human semen was found on her clothes has not been connected to the accused as discussed above. Accordingly, I am of the view that the judgment of Madan Lal (Supra) has no application to the facts of the present case.
I also find myself in agreement with the arguments of the learned Defence counsel that in the absence of any evidence with regard to the potency of the accused, the grouping of the semen stains found on the towel, clothes of the Prosecutrix and her private parts and considering the fact that the Prosecutrix for the first time deposed before the court regarding the allegations of the rape by the accused, the accused cannot be convicted for the offence punishable under Section 376 IPC.
However, at the same time, I find force in the arguments of the Prosecution that the accused had himself withdrawn his application for medical examination as recorded in the order sheet dated 14.01.2008. The fact that he refused for his medical examination as deposed by Dr.Neeraj Kumar (PW2) remained unrebutted as PW2 was not crossexamined regarding the same. The presence of the Panty of the Prosecutrix at the place of occurrence has also been proved from the deposition of the Prosecution witnesses. The Panty was clearly identified by the Prosecutrix during the trial.
The fact that the examining doctor recorded in her report Ex.PW16/A that the undergarments of the Prosecutrix had been seized would, in my view, not be fatal to the case of the Prosecution as it is merely a minor discrepancy. The fact that the Salwar of the Prosecutrix was seized upon the exhibits having been handed over by the examining doctor stands proved from the testimony of PW10 Insp.Brijesh Kumar, who exhibited the seizure memo Ex.PW10/A. Moreover, it is the Salwar which was sent to FSL in a sealed pulanda through ASI Veena (PW17), who deposed that the examining doctor handed over to her exhibits sealed with the seal of hospital which were deposited by her in the malkhana.
PW7 HC Ramkhiladi has deposed that the 16 sealed articles were sent to the FSL through ASI Veena on 06.11.2007 vide RC No.46/21 and proved the same vide Ex.PW7/A. He has also deposed that till the parcels remained with him, the seal remained intact. The witness was not crossexamined by the accused and hence it cannot be disputed that the exhibits which were handed over by the examining doctor to the IO and which were seized vide seizure memo Ex.PW10/A contained the seized Salwar and not the undergarment as recorded in MLC Ex.PW16/A. The undergarments of the Prosecutrix has been proved to have been recovered from the place of occurrence. Hence the aforesaid discrepancy, being minor in nature, cannot be said to affect the case of the Prosecution fatally.
In the light of the above discussion and the evidence on record, I am therefore of the considered opinion that the offence punishable under Section 376 cannot be said to be proved against the accused for want of cogent evidence to this effect. The prosecutrix PW1 for the first time has deposed before the court that she has been raped by the accused and hence her testimony to this extent cannot be accepted. Moreover, the Prosecution failed to prove the potency of the accused to perform sexual intercourse. Semen stains found on the private parts of the Proescutrix, her Salwar and Towel seized from the place of occurrence cannot be connected to the accused.
However, at the same time on going through the deposition of the Prosecutrix it is seen that she reiterated her stand in the cross examination that she had stated before the police that the accused was doing 'Cherkhani' with her body. It has also been established by the Prosecution that the Prosecutrix was found lying naked in the office of the accused in an unconscious state. It has also been established that the accused was also found naked on the chair when the family members of the Prosecutrix reached his office when they were unable to get in touch with the her till evening. The presence of the accused in his office hence stands proved. The presence of semen in the external and internal vaginal swabs, pubic hair and Salwar of the Prosecutrix has also been proved beyond reasonable doubt. It is not the defence of the accused that some other person was present in his office.
Thus, upon considering the entire facts and circumstances and the evidence in its totality, I am therefore of the opinion that though the accused cannot convicted for the offence punishable under Section 376 IPC, yet there is sufficient material on record to hold that the accused outraged the modesty of the Prosecutrix and thereby committed offence punishable under Section 354 IPC, which reads as under:
354. "Assault or criminal force to woman with intent to outrage her modesty - Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both". s Though the term 'outraging the modesty' has not been defined in the statute, but in Rupan Deol Bajaj vs. Gill K.P.S., AIR 1996 SC 309, the Hon'ble Supreme Court observed that "modesty is the quality of being modest and in relation to woman means womanly propriety of behaviour ;
scrupulous chastity of thought, speech and conduct. The word 'modest' in relation to woman is defined as decorous in manner and conduct; not forward or lewd; shamefast". There is no abstract conception of modesty that can apply to all cases. Also, in the case of Tarkeshwar Sahu reported as (2006) 8 SCC 560, the word 'modesty' is not to be interpreted with reference to the particular victim of the act, but as an attribute associated with female human beings as a class. It is a virtue which attaches to a female on account of her sex.
In Raju Pandurang Mahale vs. State of Maharastra, AIR 2004 SC 1677, the Hon'ble Apex Court has observed as under: "What constitutes an outrage to female modesty is nowhere defined. The essence of a woman's modesty is her sex. The culpable intention of the accused is the crux of the matter.
The reaction of the woman is very relevant, but its absence is not always decisive. Modesty in this section is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex."
Consequently, in the light of the above discussion, the evidence on record and the relevant case law, accused Manmohan Singh is convicted for the offence punishable under Section 354 IPC.
With regard to the charge for the offence punishable under Section 328 IPC, I find myself in complete agreement with the arguments of the defence that the Prosecution has failed to prove its case that the accused administered some stupefying substance/intoxicant in the tea to the Prosecutrix on the day of the incident in question. There is no medical evidence to hold that the Prosecutrix was under the influence of any intoxicant. The FSL report Ex.C1 clearly shows the absence of any intoxicant in the 'Gastric Layce' (Ex.2) of the Prosecutrix.
In the judgment titled as Santosh Kumar vs. State in Crl.Appl.No.12 of 2000 (Delhi High Court) relied upon by the defence, it has been observed by the Hon'ble High Court as under:
"A perusal of this Section would show that the following elements are essential to constitute an offence under Section IPC: (i) Some person or persons should administer or cause to be taken by any person any poison or stupefying, intoxicating or unwholesome drug, or other thing;
and (ii) The intention of the person or persons mentioned in (i) should be to cause hurt to the person concerned, or should be to commit or to facilitate commission of an offence or there should be knowledge on the part of the person or persons that the result of his act or their act was likely to cause hurt to the concerned persons. Both these elements should exist conjunctively, then and then alone would the offence be complete and the person or persons, as the case may be, would be guilty of the offence contained in Section 328 IPC."
Consequently, in the light of the aforesaid discussion, the accused Manmohan Singh S/o Sh.Harnam Singh is acquitted for offence punishable under Sections 376/328 IPC. However, upon being proved that the accused outraged the modesty of the Prosecutrix 'VL', he is liable to be convicted for the offence punishable under Section 354 IPC. Ordered accordingly. Let him be heard on the point of sentence. Announced in the Open Court on 30.05.2013 (Kaveri Baweja) Additional Sessions JudgeSpl. FTC2 (Central) Tis Hazari Courts: Delhi.
State Vs Manmohan Singh FIR No. : 416/07 PS: Karol Bagh SC No. : 25/13 30.5.13 Present: Sh.Anil Kumar Ld. Substitute APP for the State.
Accused on bail.
Sh. Rohit Minocha - ld. Counsel for the accused.
Vide judgment announced of even date on separate sheets, Accused Manmohan Singh S/o Sh.Harnam Singh is acquitted for offence punishable under Sections 376/328 IPC. However, there is sufficient material on record to hold that accused outraged the modesty of the Prosecutrix and thereby committed offence punishable under Section 354 IPC. Accordingly, he has been convicted for the offence punishable under Section 354 IPC.
The case is directed to be listed on 01.06.2013 for arguments on the point of sentence.
(Kaveri Baweja) Additional Sessions JudgeSpl.FTC02 (Central) Tis Hazari Courts: Delhi.
In the Court of Ms. Kaveri Baweja Additional Sessions JudgeSpl. FTC2 (Central) Tis Hazari Courts: Delhi.
Sessions Case No. : 25/13
UID No. : 02401R1224992007
State versus Manmohan Singh
S/o Sh.Harnam Singh
R/o H.No. 752, Ambika
Apartment, Sector14,
Rohini, Delhi.
Case arising out of:
FIR No. : 416/07
Police Station : Karol Bagh
Under Section : 328/376 IPC
Judgment pronounced on : 30.05.2013
ORDER ON SENTENCE
01.06.2013
Vide judgment dated 30.05.2013, the aforesaid accused has been convicted for the offence punishable under Section 354 IPC.
I have heard submissions made by Learned Defence Counsel appearing on behalf of convict on the point of sentence. I have also considered the submissions made on behalf of Prosecution.
It is submitted that the accused is of 65 years of age and that there is no previous record of any conviction against him. It was further contended that the accused has already remained in custody for a period of about 7 months during the proceedings of this case. It is prayed that considering the aforesaid, a lenient view he may be taken against him and that he may be sentenced for the period already undergone by him during the course of trial.
Ld. APP, on the other hand, has strongly prayed for maximum prescribed punishment to be awarded to the above named convict.
Keeping in view the nature of the offence proved to have been committed by the above named convict, I deem it appropriate to direct convict Manmohan Singh S/o Sh.Harnam Singh to undergo RI for a period of 2 years with fine of Rs.10,000/, in default whereof he is directed to undergo SI for a period of 6 months, for the offence punishable under Section 354 IPC. It is needless to add that the accused shall be entitled to the benefit of Section 428 Cr.PC.
It is thus ordered accordingly. Copy of judgment and order on sentence be provided to convict free of cost. File be consigned to Record Room.
(Kaveri Baweja) Additional Sessions JudgeSpl.FTC02 (Central) Tis Hazari Courts: Delhi.
01.06.2013 State Vs Manmohan Singh FIR No. : 416/07 PS: Karol Bagh SC No. : 25/13 01.06.13 Present: Sh.Anil Kumar Ld. Substitute APP for the State.
Convict in person .
Sh.Rajiv Khosla and Sh. Rohit Minocha - ld. Counsels for the accused.
Vide separate order on sentence announced today in open court, convict Manmohan Singh S/o Sh.Harnam Singh is hereby sentenced to undergo RI for a period of 2 years with fine of Rs.10,000/, in default whereof he is directed to undergo SI for a period of 6 months for the offence punishable under Section 354 IPC. He shall also entitled to the benefit of Section 428 Cr.PC. Copy of judgment and order on sentence be provided to convict free of cost.
At this stage, convict Manmohan Singh has filed an application for suspension of sentence.
Heard.
Having regard to the submissions made, convict Manmohan Singh S/o Sh.Harnam Singh is ordered to be released on bail upon furnishing personal bond to the tune of Rs. 20,000/ with one surety in the like amount to the satisfaction of court for a period of 60 days or till filing of appeal whichever is earlier.
Bail bond furnished and accepted.
File be consigned to Record Room.
(Kaveri Baweja) Additional Sessions JudgeSpl.FTC02 (Central) Tis Hazari Courts: Delhi.
01.06.2013