Delhi District Court
Fir No.155/08 State vs . Brij Bihari Rathore Ps:Rajouri Garden on 25 August, 2014
FIR No.155/08 State Vs. Brij Bihari Rathore PS:Rajouri Garden
IN THE COURT OF MS. EKTA GAUBA:
METROPOLITAN MAGISTRATE
(MAHILA COURT)3,WEST, TIS HAZARI COURTS,
DELHI
State Vs. Brij Bihari Rathore
FIR No :155/08
P.S. Rajouri Garden
U/s 354/509 IPC
JUDGMENT
1. Case Unique I.D. No. : 02401R0043852009
2. Date of complaint : 18.03.2008
3. Name, parentage & address of : Brij Bihari Rathore
the accused S/o Ram Dev Rathore
R/o Quarter No.60,
TypeI, Complex G.G.S.
Hospital, Raghubir
Nagar, Delhi
4. Offence complaint of : U/s 354 IPC
5. Plea of accused : Pleaded not guilty
6. Final order : Convicted
7. Date of Order : 23.08.2014
BRIEF REASONS FOR SUCH DECISION :
1. Accused has been forwarded by the SHO of PS Rajouri Garden to face trial U/s 354/509 IPC.
2. In a nut shell, the prosecution story is that complaint was State Vs. Brij Bihari Rathore Page No. 1 FIR No.155/08 State Vs. Brij Bihari Rathore PS:Rajouri Garden made by complainant PW victim on 18.03.2008 that on 17.03.2008 she alongwith her mother and her brother in law (jija) Sh. Ranjit Singh went at 6.00 AM to the casualty of Guru Gobind Singh Hospital and there she met the doctor of the casualty and the said doctor checked her and gave injection to her and in the meantime the doctor told her mother to bring a glass of water and when her mother went to bring the water then the said doctor on one slip mentioned in writing his name as "Rathore alongwith his telephone number" and while giving her injection the said accused doctor put his hand on her body with intention to outrage her modesty and then her mother came and out of shame and fear she could not tell her anything and then she returned to her house. PW victim further stated that thereafter the accused doctor Rathore called her twice on the telephone in the morning and she after scolding the accused kept the telephone down and in the afternoon accused again called her many times then her sister by calling twice scolded the accused but the accused again and again called PW victim on telephone and told her to come and meet him at the hospital. On this complaint, FIR was registered, accused was arrested and after completion of remaining investigation, Charge Sheet was filed in the Court.
3. Copy of charge sheet was supplied to accused free of cost State Vs. Brij Bihari Rathore Page No. 2 FIR No.155/08 State Vs. Brij Bihari Rathore PS:Rajouri Garden U/s 207 Cr.P.C.
4. Finding a prima facie case U/s 354 IPC, notice was served upon the accused Brij Bihari Rathore, to which accused Brij Bihari Rathore pleaded not guilty and claimed trial.
5. Prosecution to prove its case examined seven witnesses namely PW1victim, PW2 Paramjeet Kaur, PW3 Harminder Jeet Singh, PW4 HC Devi Sahay, PW5 Dr. Mahender Singh, PW5 Ct. Jaspal Singh and PW6 SI Shri Krishan.
6. Statement of accused U/s 313 Cr.P.C. was recorded separately wherein accused denied all the allegations levelled against him and stated that the husband and the jiju of the complainant were involved in destroying the property of the GGS hospital and the hospital authorities have registered an FIR bearing no.154/08 U/s 186/353/34 & etc IPC PS Rajouri Garden against them and the present FIR is the counter blast to the above said FIR bearing No.154/08.
7. Accused Brij Bihari Rathore chose to lead defence evidence and examined DW1Sh. Chandra Kiran and thereafter, accused has closed his defence evidence vide his separate statement. State Vs. Brij Bihari Rathore Page No. 3 FIR No.155/08 State Vs. Brij Bihari Rathore PS:Rajouri Garden
8. I have heard the arguments advanced by the Ld. APP for the State as well as the Ld. defence counsel and gone through the case file carefully and thoroughly.
9. Prosecution in order to prove its case examined formal witnesses like PW4 HC Devi Sahay and he stated that on 18.03.2008, on the basis of rukka Mark X received from ASI Shri Krishan, he registered the present FIR and the copy of same is Ex.PW4/A and he made endorsement on rukka Ex.PW4/B and after that he handed over the original rukka and copy of FIR to Ct. Jashpal and he also recorded the DD No.38A on the abovesaid date and he has brought the photocopy of relevant entry no.38A of Register No.2 which is Ex.PW4/C upon which the case property was deposited in the malkhana vide the said entry. PW5 Ct. Jaspal Singh was examined and he proved that on 18.03.2008, duty officer handed over to him original rukka and copy of FIR and he again handed over to IO ASI Shri Krishan at Guru Gobind Singh Hospital.
10. Prosecution in order to prove its case examined its most crucial witness i.e. complainantcumvictimcum eye witness State Vs. Brij Bihari Rathore Page No. 4 FIR No.155/08 State Vs. Brij Bihari Rathore PS:Rajouri Garden namely PW1 victim and she stated that in the year 2008, she had come to her parental home and on 16.03.2008, she alongwith her mother and husband went to Guru Gobind Singh Hospital and on 17.03.2008, she alongwith her mother and brother in law (jija) Ranjeet Singh had gone to Guru Gobind Singh Hospital for treatment at about 6.00 am at Casualty and thereafter casualty doctor diagnosed and administered her an injection but her stomach ache did not cure and thereafter doctor sent her mother for bringing water and she was taken inside for check up and while doing check up, doctor touched her stomach and other parts with bad intention upon which she held her hand and thereafter doctor handed over her a slip on which he had written "he love her" and he wants friendship with her alongwith his name and mobile number. She further stated that thereafter her mother came there and the doctor asked her to give all the details in the register and she did not disclose about the incident to anyone as she was having severe pain and thereafter she went to her home and the accused started calling to her and she replied him not to call her and disturb her, however, he continued calling her and thereafter she informed her jija Ranjit Singh and her jiju told her to inform him whenever she received another call from accused and in the meantime while she was talking to her jiju, accused again called and she informed her jiju and her jiju told her to tell the accused that State Vs. Brij Bihari Rathore Page No. 5 FIR No.155/08 State Vs. Brij Bihari Rathore PS:Rajouri Garden she will be coming to the place where accused wants her to come and she picked up the phone and accused told her to come at gate no.1 and 2 and she does not remember exactly as the accused wanted to show her some flats and she told him that she is coming and then he enquired whether she was coming alone and how she was coming and she told that she would be coming alone in her own car and he enquired whether she would be driving the car to which she replied 'yes'. She further stated that thereafter she alongwith her jiju, her mother, brother and 34 friends of her brother went to the place as told by the accused and the accused was standing there and her brother enquired from him where he was Dr. Rathore and when he said he is, a scuffle took place between her relatives and accused and thereafter all the people went inside the hospital and some senior doctors also came there and police and medial also came there and her jiju told her to go to the car and instructed her not to come out of the car and she complied with the instructions. She further stated that she does not know what happened thereafter and her husband was not with her at that time as she had come to stay at her parents house and after sometime her jiju told her to inform her husband as the things were going out of proportion and she informed her husband and before her husband could reach the hospital, Dr. Rathore absconded from the place with the help of some senior State Vs. Brij Bihari Rathore Page No. 6 FIR No.155/08 State Vs. Brij Bihari Rathore PS:Rajouri Garden doctors and she was not permitted to come out of the car in front of the media and accordingly she does not know what happened there and she had made her complaint at PS Rajouri Garden and same is Ex.PW1/A, seizure memo of prescription slip is Ex.PW1/B, arrest memo is Ex.PW1/C and personal search memo is Ex.PW1/D and the accused is present in the Court today & correctly identified.
11. Prosecution in order to prove its case, examined PW2 Smt. Paramjeet Kaur and she stated that about two years back, her daughter had come to her house for 1012 days and in the morning at around 5.00 AM, her daughter had severe stomach ache and thereafter she alongwith her daughter and one Prince who brought his car went to Guru Gobind Singh hospital and thereafter doctor diagnosed and administered her daughter an injection and the doctor asked her daughter whether she had some relief or not and when her daughter replied in negative then he asked her daughter to come inside for check up and doctor asked her to bring water and she did not find water. She further stated that thereafter doctor gave her prescription slip to bring the medicines and when she returned, she saw her daughter inside a curtained cabin and touching the stomach of her daughter and since her phone was lying there, the doctor took out her number and thereafter doctor started calling her daughter. State Vs. Brij Bihari Rathore Page No. 7 FIR No.155/08 State Vs. Brij Bihari Rathore PS:Rajouri Garden She further stated that thereafter all her relatives asked her daughter to tell the doctor that her daughter would be coming at the place where the doctor wants to meet her daughter and thereafter they reached the place where the doctor told her daughter to meet and a scuffle took place between her relatives and the accused and thereafter the doctor/accused absconded from the hospital with the connivance of other doctors. At this stage, she has looked in the entire court room and she stated that accused doctor is not present in the court room. At this stage, she was cross examined by Ld. APP for the State as she was not telling complete truth.
12. Prosecution examined PW3 Harminder Jeet Singh and he deposed that the incident occurred around 23 years before the present date and he does not remember the exact date due to lapse of long period of time and 45 days before the incident, his wife was having some medical problem and so she had gone to her mother's house at Vishnu Garden and in the middle of month of March, his wife had gone to GGS Hospital alongwith his mother in law and his brother in law Ranjeet Singh for purpose of treatment. He further deposed that on that day at around 4.305.00 pm, he received telephone call from his wife and she told him that the accused was making her frequent calls from the time she had came from the State Vs. Brij Bihari Rathore Page No. 8 FIR No.155/08 State Vs. Brij Bihari Rathore PS:Rajouri Garden hospital and was asking her to be friend with him and she told him that the accused had tried to outrage her modesty while he was giving her injection. He further deposed that he reached at the hospital at around 8.00 pm and when he reached there he came to know that the accused had already left and then he went to the place of the parents of his wife and he alongwith his wife came back to his house and his wife also told him that she had lodged a complaint at the Police Station and he met the police at the hospital when he went there at 8.00 pm and her wife was also present at the hospital and he do not know anything else about the present case. At this stage, he was cross examined at length by Ld. APP for the State as he was not telling complete material facts relevant to the present case.
13. Prosecution in order to prove its case examined PW5 Dr. Mahender Singh Retired CMO (NFSG) from Guru Gobind Singh Govt. Hospital and he stated that on 17.03.2008 he was posted as CMO and on that day at about 5.45 AM one patient namely PW victim came to the emergency/casualty with abdomen pain and after examining her, he advised an injection Rantach Etc. and at 6.15 AM, he again advised her an injection Voveran when she complained again of the abdomen pain and he advised her to come again at 9.00 AM at medical OPD for further treatment and he examined the said State Vs. Brij Bihari Rathore Page No. 9 FIR No.155/08 State Vs. Brij Bihari Rathore PS:Rajouri Garden patient vide memo already Ex.P1, now Ex.PW5/A.
14. Prosecution in order to prove its case examined PW6 SI Shri Krishan Investigating Officer and he deposed that on 18.03.2008, he was posted at PS Rajouri Garden as ASI and at about 5.20 PM the complainant alongwith her husband came at the Police Station and the complainant got her statement recorded which is already Ex.PW1/A and on the basis of same, he prepared rukka which is mark X and now Ex.PW6/A and he handed over the rukka to Duty Officer for registration of FIR and he alongwith the complainant and her husband went to the spot at Guru Gobind Singh hospital casualty and he inspected the site and prepared Site Plan at the instance of the complainant Ex.PW6/B. He further deposed that thereafter he inquired about the accused but was not found and thereafter he seized the prescription slip Ex.P1 and P2 vide memo already Ex.PW1/B and in the meanwhile Ct. Jaspal reached at the spot with original rukka and copy of FIR and he recorded the statement of complainant and her husband and thereafter came back at the Police Station. He further deposed that on 26.03.2008, he served notice U/s 160 CrPC to the MS, GGS Hospital for supplying duty roster and other relevant information and on 27.03.2008, he received the duty roster of month of March 2008 which is Mark A and Mark B and on the same date, the accused was arrested at Police Station at the instance of the complainant vide memo already Ex.PW1/C and the accused Brij Bihari State Vs. Brij Bihari Rathore Page No. 10 FIR No.155/08 State Vs. Brij Bihari Rathore PS:Rajouri Garden Rathore is present in the court today and correctly identified and the personal search of the accused was conducted vide memo Ex.PW1/D and on 02.05.2008, he received the call detail of the mobile number 9999142848 belonging to the accused which is Mark C and Mark D and thereafter he prepared the charge sheet and filed in the court through concerned SHO.
15. Ld. APP for the State contended that DW1 Chandra Kiran examined by the accused in his defence in his cross examination has admitted that today he has come on the request of the accused and he has not brought the proof regarding his job in the said hospital on the date of incident and he has not brought the duty roster pertaining to the date of incident. Ld. APP for the State contended that this shows that DW1 Chandra Kiran examined by the accused is of no use to the accused because DW1 is an interested witness and DW1 Chandra Kiran has not brought any document to prove the defence taken by the accused. Ld. APP for the State contended that prosecution is able to prove its case beyond reasonable doubt and accused should be accordingly convicted.
16. On the other hand, accused has raised the defence that the husband and the jiju of the complainant were involved in destroying the property of the GGS hospital and the hospital authorities have registered an FIR bearing no.154/08 State Vs. Brij Bihari Rathore Page No. 11 FIR No.155/08 State Vs. Brij Bihari Rathore PS:Rajouri Garden U/s 186/353/34 & etc IPC PS Rajouri Garden against them and the present FIR is the counter blast to the above said FIR bearing No. 154/08. Accused to prove his defence has examined DW1 Sh. Chandra Kiran and he stated that he is staff nurse in Guru Gobind Singh Hospital, Raghubir Nagar, Delhi and he was working in the aforesaid hospital since 2007 and there used to be a Duty Roster having name and numbers of the doctors and the staff on duty on the places of the duties. Ld. defence counsel contended that DW1 Chandra Kiran examined by the accused has proved the fact that on the duty roster name and number of the doctors and the staff was mentioned and therefore, this shows that the accused has been falsely implicated by the complainant.
17. Ld. defence counsel contended that PW1 victim in her complaint as well as in her examination in chief as well as in her cross examination has given inconsistent versions like in the complaint PW victim has stated that she has gone along with her mother and jija while in her cross examination she has stated that her brother, mother and her jija were present along with her at the hospital on 17.03.2008. Further, PW victim in her complaint only mentioned that doctor gave her slip on which he wrote his name and number but PW1 victim in her testimony stated that doctor handed State Vs. Brij Bihari Rathore Page No. 12 FIR No.155/08 State Vs. Brij Bihari Rathore PS:Rajouri Garden over a slip on which he had written he loves her and he want to have friendship with her along with his name and mobile number. Also, PW1 victim in her cross examination stated that she had not given the said chit to the police officials. Further, PW1 victim in her complaint mentioned that due to shame and fear she could not say anything at that time while in her testimony she stated that she did not disclose about the incident to anyone as she was having severe pain. Ld. defence counsel further contended that all these inconsistencies in the versions of PW1 victim cum complainant throws doubt on the prosecution story. Ld. defence counsel further contended that PW1 victim in her cross examination stated that the prescription slips were handed over to the police by her jija Ranjeet Singh but PW3 Harminder Jeet Singh deposed that police seized the prescription slip in his presence. This shows that there are contradiction in the testimony of prosecution witnesses and this fact further throws doubt on the prosecution story. Ld. defence counsel also contended that PW1 victim in the complaint as well as in her testimony has alleged the accused as doctor Rathore who diagnosed and administered her an injection. But, the accused is employed as a staff nurse at the Guru Gobind Singh Hospital and the work profile of the accused is not to check the patients but only to give them injections and this fact has been proved by PW5 Dr. Mahender State Vs. Brij Bihari Rathore Page No. 13 FIR No.155/08 State Vs. Brij Bihari Rathore PS:Rajouri Garden Singh as he stated that on 17.03.2008, he examined PW victim and advised an injection. So, this fact further throws doubt on the prosecution story.
18. Ld. defence counsel contended that although PW1 victim in her testimony stated that a scuffle took place between her relatives and the accused and thereafter all the people went inside the hospital and some senior doctors also came there and police and media also came there. But still the complainant chose to remain silent and to go to the police station to register her complaint only after the hospital authorities had booked her husband and her jija for destroying the property by registering the FIR No.154/08 and so there is unexplained delay on the part of complainant and this fact further throws doubt on the prosecution story. Ld. defence counsel further contended that the present FIR is a counter blast to the FIR No.154/2008 filed by the Guru Gobind Singh Hospital authorities against the husband and the jija Ranjit Singh of the complainant for intentionally causing damage to the hospital property and thus to create pressure over the hospital the present false FIR has been lodged against the accused and therefore, this fact further throws doubt on the prosecution story. Ld. defence counsel further contended that PW1 victim cum complainant has concealed in her State Vs. Brij Bihari Rathore Page No. 14 FIR No.155/08 State Vs. Brij Bihari Rathore PS:Rajouri Garden complaint as well as in her testimony, the FIR No.154/2008 registered against her husband and her jija at the instance of Guru Gobind Singh Hospital where the accused was/is working and this fact further throws doubt on the prosecution story.
19. Ld. defence counsel contended that PW2 Paramjeet Kaur mother of the complainant stated that her phone was lying there and the doctor took out her number and thereafter the doctor started calling her daughter. While PW1 victim stated that doctor asked her mother to give all the details in the register. This shows that investigating officer has not found out in his investigation as to how the number of PW1 victim has been taken by the accused. Ld. defence counsel further contended that PW6 SI Shri Krishan Investigating Officer admitted that he arrested the accused in the presence of the complainant but PW1 victim cum complainant in her cross examination stated that accused was not arrested in his presence. Ld. defence counsel further contended that Investigating Officer has not recorded the statement of public persons who were present in the hospital and PW1 victim as well as PW3 Harminder Jeet Singh husband of the victim both have stated that they have never visited the hospital after the alleged incident and so this raises doubt on the correctness of the Site Plan and this all shows that State Vs. Brij Bihari Rathore Page No. 15 FIR No.155/08 State Vs. Brij Bihari Rathore PS:Rajouri Garden investigation was conducted in a defective manner and this fact further throws doubt on the prosecution story.
20. Ld. defence counsel further contended that the call details of the complainant are showing different version then the version given by the complainant and this fact further throws doubt on the prosecution story. Ld. defence counsel further contended that PW2 Paramjeet Kaur has failed to identify the accused present in the Court and stated that the accused/doctor is not present in the Court room and PW2 Paramjeet Kaur turned hostile and not supported the prosecution case and this fact further throws doubt on the prosecution story. Ld. defence counsel further contended that PW3 Harminder Jeet Singh was a hearsay witness and his testimony is of no use to the prosecution and PW2 Paramjeet Kaur in her cross examination has stated that her daughter disclosed her that accused has touched the stomach of her daughter and this shows that PW2 Paramjeet Kaur is also not an eye witness to the incident and the conviction could not be based on the testimony of sole eye witness PW1 Victim. Ld. defence counsel contended that all these aforesaid facts throws doubt on the prosecution story and the accused is entitled to the benefit of doubt and the accused should be State Vs. Brij Bihari Rathore Page No. 16 FIR No.155/08 State Vs. Brij Bihari Rathore PS:Rajouri Garden accordingly acquitted.
21. Keeping in view the contention of ld. defence counsel that PW3 Harminderjeet Singh was a hearsay witness and his testimony is of no use to the prosecution and the conviction could not be based on the testimony of sole eye witness PW1 Victim. This contention of ld. defence counsel does not holds good due to the reason that although PW3 Harminderjeet Singh in his cross examination by Ld. APP for the State admitted that after knowing about the incident from his wife, he had went to the hospital where the accused was not found and this shows that he was a hearsay witness but the conviction could be based on the testimony of sole eye witness if it is credible and as the testimony of PW1 Victim being of the complainant cum victim is of more credibility because she being the victim has no reason to omit the real culprit and to implicate the other falsely and conviction could be based on her sole testimony. Further, relying upon the judgment of the Hon'ble Bombay High Court in State vs Subhash Pagi & Anr. 2004(4) Crime 343, wherein it has been held that, "Evidence of a victim or injured witness stands on a different footing as injured witness generally does not have any reason to omit the real culprit and implicate other falsely." Further, relying upon the judgment of Hon'ble Supreme State Vs. Brij Bihari Rathore Page No. 17 FIR No.155/08 State Vs. Brij Bihari Rathore PS:Rajouri Garden Court of India in Ramesh Krishna Madhusudan Nayar V/s State of Maharashtra AIR 2008 SC 927 wherein it has been held that "conviction could be based on the testimony of sole eye witness, if it is reliable".
22. Keeping in view the defence taken by the accused that there was a Duty Roaster in his hospital wherein the name and numbers of the Doctors and staff on duty is mentioned and from there the phone number of the accused has been taken by the complainant to falsely implicate the accused and to prove it accused has examined DW1 Chandra Kiran. But the defence taken by the accused has not been proved by the accused as DW1 Chandra Kiran in his cross examination stated that he had came on the request of the accused and he has not brought the proof regarding his job in the hospital on the date of incident and today he has not brought the Duty Roaster pertaining to the date of incident. This shows that DW1 Chandra Kiran has not proved that any such Duty Roaster exists as alleged by the accused in his defence. Further, DW1 Chandra Kiran has proved that he is an interested witness as he has come on the request of the accused. So, the defence taken by the accused is not proved. Also, the contention of ld. defence counsel that the call details of the complainant are showing different version State Vs. Brij Bihari Rathore Page No. 18 FIR No.155/08 State Vs. Brij Bihari Rathore PS:Rajouri Garden then the version given by the complainant and this fact throws doubt on the prosecution story. This contention of ld. defence counsel does not holds good due to the reason that as per the call details Mark D, it is very clear that after the two incoming calls from the complainant's phone on 17.03.2008 at 06:55 a.m. and 11:30 a.m. later on accused has made four calls to the complainant from 04:00 p.m. to 06:00 p.m. So, the version of the complainant that her phone number was taken by the accused in the morning when she was in the hospital on 17.03.2008 and as after the complainant has left the hospital on 17.03.2008, accused was continuously making phone calls to the complainant so the call details prove the complainant's story that accused was continuously making phone calls to her. So, this further corroborates the complainant's case.
23. Keeping in view the contention of ld. defence counsel that there are inconsistencies in the versions of PW1 Victim cum complainant in her complaint, in her examination in chief and in her cross examination and this fact throws doubt on the prosecution story. Further contention of ld. defence counsel that there are contradictions in the testimony of the prosecution witnesses and this fact further throws doubt on the prosecution story. These contentions of ld. defence counsel does not holds good due to the State Vs. Brij Bihari Rathore Page No. 19 FIR No.155/08 State Vs. Brij Bihari Rathore PS:Rajouri Garden reason that these are not contradictions or inconsistencies but these are minor variations and the minor variations are bound to occur in the testimony of ocular witnesses. Further, relying upon the judgment of the Hon'ble Supreme Court of India in Babasaheb Apparao Patil vs. State of Maharashtra AIR 2009 SC 1461 wherein it has been laid down that "some discrepancies in the ocular account of a witness, unless these are vital, cannot per se affect the credibility of the evidence of the witness".
24. Further keeping in view the contention of ld. defence counsel that accused was not a doctor but only a staff nurse and therefore, the allegations of the complainant could not stand. This contention of ld. defence counsel does not holds good due to the reason that in the common parlance in our country the general people consider the staff nurse in the hospital as a Doctor because the patient could not ask from the staff nurse that he is a doctor or a staff nurse at that time when the patient is being medically treated. Also, in view the fact that PW1 Victim has correctly identified the accused present in the Court. So, no question of any dispute on the identity of the accused is raised on the mere ground that accused is alleged to be a doctor and not a staff nurse. Further, PW5 Dr. State Vs. Brij Bihari Rathore Page No. 20 FIR No.155/08 State Vs. Brij Bihari Rathore PS:Rajouri Garden Mahender Singh has corroborated the prosecution story that on the date of incident, he has examined PW1 Victim and advised an injection. So, this shows that accused being the staff nurse has given injection to PW1 Victim on date of incident.
25. Keeping in view the contention of ld. defence counsel that there was delay in making the complaint by the complainant as the complainant has made the complaint only after registration of FIR no.154/08 by the hospital authorities against the husband and jija of the complainant. This contention of ld. defence counsel does not holds good due to the reason that delay in making the complaint in cases of sexual assault against the women is not fatal and in the present case the complaint has been made on 18.03.2008 i.e. next day to the date of incident and the FIR no.154/08 was also registered on the same day i.e. 18.03.2008. Relying upon the Judgment of Hon'ble Supreme Court of India in State of Punjab Vs. Gurmit Singh & Ors. AIR 1996 SC 1393 and in Sri Narayan Saha & Anr. Vs. State of Tripura AIR 2005 SC 1452 wherein it has been laid down that "in sexual offences delay in lodging of FIR could be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complaint about the incident which State Vs. Brij Bihari Rathore Page No. 21 FIR No.155/08 State Vs. Brij Bihari Rathore PS:Rajouri Garden concerns the reputation of the prosecutrix and the honour of her family and it is only after giving it a thought that complaint of sexual offences is generally lodged and therefore, delay in lodging the FIR in such cases is not fatal". Also, the contention of ld. defence counsel that the present FIR is a counter blast to the FIR no.154/08 filed by the Guru Gobind Singh Hospital Authorities against the husband and the jija Ranjit Singh of the complainant for intentionally causing damage to the hospital property and the said FIR bearing no.154/08 has been concealed by the victim in her complaint as well as in her testimony. This contention of ld. defence counsel does not holds good due to the reason that accused is not the member of the Hospital Authority but only an employee of the Hospital and the FIR no.154/08 was filed by the Hospital Authorities against the husband and jija of the complainant and this fact further corroborates the complainant's testimony that a scuffle took place between her relatives and the accused at the hospital and thereafter, all the people went inside the hospital and some Senior Doctors also come there and police and media also come there. Further, PW1 Victim in her cross examination has admitted that a case was registered against her jiju and her husband by the Hospital Authorities for the nuisance created by them in the hospital. So this shows that PW1 Victim in her evidence has not concealed the State Vs. Brij Bihari Rathore Page No. 22 FIR No.155/08 State Vs. Brij Bihari Rathore PS:Rajouri Garden registration of the FIR against her husband and her jiju.
26. Keeping in view the contention of ld. defence counsel that the investigation has been conducted in the defective manner and this fact further throws doubt on the prosecution story. This contention of ld. defence counsel does not holds good due to the reason that merely because investigation has been conducted in a defective manner, it does not effect the merits of the case. Further, relying upon the Judgment of Hon'ble High Court of Delhi in Father Shepherd Vs. State of NCT of Delhi 2007 (2) CCC 472 wherein it has been laid down that "merely because the investigation has been conducted in a slipshod and defective manner and some lacunae have been left by the investigating officer, an accused cannot be acquitted."
27. Keeping in view the contention of ld. defence counsel that PW2 Paramjeet Kaur mother of the complainant failed to identify the accused present in the Court and turned hostile and not supported the prosecution case and this fact further throws doubt on the prosecution story. This contention of ld. defence counsel does not holds good due to the reason that PW2 Paramjeet Kaur in her cross examination by ld. APP for the State admitted that she is State Vs. Brij Bihari Rathore Page No. 23 FIR No.155/08 State Vs. Brij Bihari Rathore PS:Rajouri Garden unable to identify the accused because of lapse of time. Further, the evidence of hostile witness to the extent it is not hostile is admissible. Further, relying upon the judgment of Birju Vs. State of Madhya Pradesh 2014(3) SCC 421 wherein it has been held that "evidence of a hostile witness cannot be discarded as a whole and relevant parts thereof, which are admissible in law, can be used either by prosecution or defence."
28. Keeping in view the contention of ld. defence counsel that PW1 Victim in her cross examination admitted that accused was not arrested in her presence and this fact throws doubt on the prosecution story. This contention of ld. defence counsel does not holds good due to the reason that one stray sentence appearing in the cross examination of the crucial witness does not effect the credibility of the said witness. Relying upon the judgment of Hon'ble Supreme Court of India in Case titled as Karamjit Singh V/s State (Delhi Administration) 2003 SCC (Cri) 1001 wherein it has been laid down that " the testimony of a prosecution witness could not be discarded merely on account of a stray sentence appearing in his cross examination".
State Vs. Brij Bihari Rathore Page No. 24 FIR No.155/08 State Vs. Brij Bihari Rathore PS:Rajouri Garden
29. Keeping in view the fact that the essential ingredients of offence U/s 354 IPC are that accused assaults or uses criminal force to any woman intending to outrage or knowing it to be likely that he will thereby outrage her modesty. To prove it prosecution has examined its most crucial witness namely PW1 Victim i.e. complainant cum Victim and she stated that while doing check up, accused doctor touched her stomach and other parts with bad intention upon which she held his hand and thereafter, doctor handed over her a slip on which he had written "he loves her" and he wants friendship with her along with his name and mobile number and she proved her complaint Ex.PW1/A. Further, PW2 Paramjeet Kaur mother of the victim has corroborated the version of the complainant. PW2 Paramjeet Kaur stated that thereafter, doctor gave her prescription slip to bring the medicines and when she returned she saw her daughter inside a curtained cabin and he touching the stomach of her daughter. Thus, prosecution is able to prove that accused assaults or uses criminal force upon the victim with an intention to outrage her modesty.
30. To prove the identity of the accused, PW1 victim has stated that the accused is present in the Court and correctly State Vs. Brij Bihari Rathore Page No. 25 FIR No.155/08 State Vs. Brij Bihari Rathore PS:Rajouri Garden identified. PW1 Victim has also proved the arrest memo of the accused Ex.PW1/C. Further, PW1 Victim in her complaint has mentioned the accused as Dr. Rathore. Also, PW6 SI Shri Krishan stated that on 27.03.2008, accused was arrested at the police station at the instance of complainant vide memo Ex.PW1/C. He further stated that the accused Brij Bihari Rathore is present in the Court today and correctly identified. He also proved the personal search of the accused vide memo Ex.PW1/D. Further, no motive on the part of PW1 Victim to falsely implicate the accused is proved by the accused. Also, the fact that on the date of incident accused was on duty in the Casualty has not been denied by the accused. Thus, prosecution is able to prove the identity of the accused.
31. Keeping in view the aforesaid reasoning as well as the relying upon the judgment of Hon'ble Supreme Court of India in Ramesh Krishna Madhusudan Nayar V/s State of Maharashtra (supra) that conviction could be based on the testimony of sole eye witness if it is credible. Also, I am of the considered view that testimony of PW1 Victim is clear, convincing and reliable and no material has come on record which falsify her evidence and the other PWs have fully corroborated the version of PW1 Victim. Also, all State Vs. Brij Bihari Rathore Page No. 26 FIR No.155/08 State Vs. Brij Bihari Rathore PS:Rajouri Garden the essential ingredients of offence punishable U/s 354 IPC has been fully established against accused Brij Bihari Rathore. I am of the considered view that prosecution is able to prove its case against accused Brij Bihari Rathore beyond reasonable doubt. Hence, accused Brij Bihari Rathore is accordingly convicted for the offence punishable U/s 354 IPC.
Let, accused be heard separately on the point of sentence on 25.08.2014.
ANNOUNCED IN THE OPEN COURT TODAY ON 23.08.2014.
(EKTA GAUBA) Metropolitan Magistrate, Mahila Court03/West/Delhi State Vs. Brij Bihari Rathore Page No. 27 FIR No.155/08 State Vs. Brij Bihari Rathore PS:Rajouri Garden IN THE COURT OF MS. EKTA GAUBA: METROPOLITAN MAGISTRATE (MAHILA COURT)03,WEST, TIS HAZARI COURTS, DELHI.
State Vs. Brij Bihari Rathore FIR No :155/08 P.S. Rajouri Garden U/s 354/509 IPC ORDER ON SENTENCE 25.08.2014 Present: Ld. APP for the State.
Convict Brij Bihari Rathore in person with ld. counsel Sh. Mahender Singh.
Arguments on the point of sentence heard.
Ld. counsel for the convict Brij Bihari Rathore contended that Convict Brij Bihari Rathore is aged about 32 years old and is a Government Servant and is a Staff Nurse and is the sole bread earner of his family and convict Brij Bihari Rathore is having old aged parents and wife and unmarried sister and one school going minor child to look after. Ld. counsel for the Convict Brij Bihari Rathore also submitted that Convict Brij Bihari Rathore may kindly be released on probation as he is not a previous convict.
On the other hand, Ld. APP for the State contended that probation could be given to the Convict Brij Bihari Rathore only State Vs. Brij Bihari Rathore Page No. 28 FIR No.155/08 State Vs. Brij Bihari Rathore PS:Rajouri Garden after considering the conduct of the Convict Brij Bihari Rathore.
I have carefully considered the submissions made by Ld. APP for the State as well as Ld. counsel for Convict Brij Bihari Rathore.
Keeping in view the latest judgment of the Hon'ble Supreme Court of India in Ajahar Ali v/s State of West Bengal 2013 (3) SCC (Cri) 794 wherein it has been held that "benefit of Probation of Offenders Act, 1958 cannot be extended to the accused considering the heinous crime i.e. crime against women that accused had committed and social conditions prevailing in the society and so the benefit of probation is not available to persons convicted of offences U/s 354, 354A, 354B, 354C and 354D IPC".
In the light of aforesaid judgment and in view of the fact that Convict Brij Bihari Rathore being the male staff nurse at the Government Hospital has misbehaved indecently with the victim by touching the stomach and other parts of the body of the victim with intention to outrage her modesty at the time when the convict was giving injection to the patient/victim and thereafter the convict started making calls on the mobile number of the victim and in view of the fact that offence against women are on increase in the city and it is well known fact that it is serious public order problem if the women patients are not safe at that time when they are being State Vs. Brij Bihari Rathore Page No. 29 FIR No.155/08 State Vs. Brij Bihari Rathore PS:Rajouri Garden medically treated even from the para medical staff in the Government Hospital as the convict was a male staff nurse and he has misbehaved indecently with the patient / victim while performing his duty as a male staff nurse and in view of the facts and circumstances, Convict Brij Bihari Rathore does not deserves the benefit to be released on probation.
I am of the considered view that interest of justice will be served if for the offence punishable U/s 354 IPC, Convict Brij Bihari Rathore is sentenced to simple imprisonment for a period of one year and to pay fine of Rs.1,000/ and in default of payment of fine the Convict Brij Bihari Rathore shall further undergo simple imprisonment for a period of one month and also to pay compensation of Rs.9,000/ to the victim and in default of payment of compensation, the Convict Brij Bihari Rathore shall further undergo simple imprisonment for a period of nine months.
Convict Brij Bihari Rathore be given benefit of Section 428 CrPC.
Ordered accordingly.
Copy of judgment has been supplied to the Convict Brij Bihari Rathore free of cost on the date of judgment itself i.e. State Vs. Brij Bihari Rathore Page No. 30 FIR No.155/08 State Vs. Brij Bihari Rathore PS:Rajouri Garden 23.08.2014.
Copy of order on sentence be supplied to the Convict Brij Bihari Rathore today itself free of cost.
Announced in the open court today i.e. on 25.08.2014 (Ekta Gauba) MM (Mahila Court)03 West,THC,Delhi/25.08.2014 State Vs. Brij Bihari Rathore Page No. 31