Muzibullah Ansari vs State Of Nct Of Delhi
2011 Latest Caselaw 2782 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+              CRL.REV.P. 236/2011 & Crl.M.A.5925/2011

                                                  Date of decision: 24.05.2011


       MUZIBULLAH ANSARI                                      ..... Petitioner

                                Through Mr.S.K.Rai, Adv.

                       versus


       STATE OF NCT OF DELHI                                  ..... Respondent

Through Mr.N.Sharma, APP

CORAM:

        HON'BLE MR. JUSTICE V.K. SHALI


       1.      Whether Reporters of local papers may be
               allowed to see the judgment?                   YES
       2.      To be referred to the Reporter or not ?        NO
       3.      Whether the judgment should be reported
               in the Digest ?                                NO

V.K. SHALI, J. (oral)

1. This is a Revision Petition filed by the petitioner against the

judgment dated 26.04.2011 passed by Shri N.K. Kaushik, learned

Additional Sessions Judge-02, District Courts Dwarka, New Delhi,

confirming the conviction and sentence passed by the learned trial

Magistrate under Section 354 IPC and sentencing him to simple

imprisonment for four months and a fine of Rs.1000/-

2. Briefly stated, the facts of the case are that the present petitioner

was posted as a Ward Boy in Divya Prastha Diagnostic Hospital,

Main Road, Palam, New Delhi. PW-3 Neetu Singh, the

complainant had got admitted in the said hospital on 30.12.2008

on account of some calcium deficiency and consequent difficulty

being felt by her in moving her limbs. It is the case of the

prosecution that two months prior to the date of admission, she

had delivered a baby which had resulted in this calcium

deficiency. She was kept in ICU on 30th, 31st December 2008 and

1st January, 2009. She was shifted to the Private Ward and finally

discharged on 2nd January, 2009. In the ICU, there used to be only

one nurse apart from the present petitioner who used to visit as a

Ward Boy. PW-3 Neetu Singh lodged a complaint on 2nd January,

2009 and made a statement to S.I. Anish Sharma which is proved

as Ex.PW-3/A on which he made an endorsement Ex.PW-5/B on

the basis of which an FIR No. 3/2009, u/s 354 IPC in PS Palam

Village was registered.

3. It was stated by PW-3 Neetu Singh that when she was in ICU on

30th and 31st December, 2008 the present petitioner used to come

alone and used to pose that before the examination of the doctor,

he has to conduct an examination and he would, under that

pretext, touch the private parts of the complainant. She remained

in the ICU till 1st January, 2009 and thereafter when she was

shifted to the Private Ward, she made this fact known to her

husband and at the time of discharge on 2nd January, 2009, she

lodged a complaint with the police and her statement as stated

above was recorded and the FIR was registered.

4. After investigation, the charge sheet was filed and the prosecution

examined six witnesses in order to bring the guilt of the petitioner

home. Two of the material witnesses examined by the prosecution

are PW-3 Neetu Singh and her husband PW-4, Lokesh Kumar.

Both of them have supported the prosecution case and PW-4 has

corroborated the testimony of PW-3 Neetu Singh that the present

petitioner on the pretext of checking the lady while she was

admitted in ICU, would come and touch her private parts. Later

on, both the witnesses were extensively cross examined and

nothing could be brought about in their cross-examination which

would discredit either of the two witnesses. The remaining four

witnesses including the doctor from the hospital, who were

examined, have testified in favour of the prosecution although their

testimony more or less is formal in nature.

5. The learned Magistrate, after hearing the arguments, convicted the

petitioner for an offence under Section 354 IPC and sentenced him

to a very lenient punishment of simple imprisonment for four

months and a fine of Rs. 1000/-.

6. The petitioner, feeling aggrieved by the said conviction and

sentence, preferred an appeal before the Court of Sessions, which

was heard and dismissed on merits by the learned Additional

Sessions Judge-02 vide judgment dated 26.04.2011. The petitioner

still feeling aggrieved, has chosen to file the present revision

petition against the concurrent finding of fact holding him guilty for

an offence of molestation and outraging the modesty of a woman.

7. I have heard the learned counsel for the petitioner and the learned

APP.

8. The learned counsel for the petitioner has raised only two points

before this Court. The first point urged by him is that the

petitioner has been falsely implicated in the instant case on

account of the fact that the complainant and her husband PW-3

and PW-4, respectively had some dispute regarding billing with the

hospital and in order to settle the score with the hospital, they have

falsely implicated the present petitioner. In order to support his

point, the learned counsel for the petitioner took the Court through

the testimony of PW-6, Dr. Charu Shrivastava, who in her cross-

examination admitted that there was some dispute regarding

billing.

9. The second point which has been urged by the learned counsel for

the petitioner is that according to the prosecution case, the FIR has

been registered on the basis of the complaint of the husband who

has made a statement in this regard whileas the actual FIR No.

3/2009 shows that it has been registered on the basis of the

statement of PW-3, the complainant herself and, therefore, an

advantage was sought to be drawn that he has been falsely

implicated.

10. I have carefully considered the submissions made by the learned

counsel for the petitioner and gone through the record including

the judgments passed by the learned Magistrate and the learned

Additional Sessions Judge. So far as the question of the identity of

the petitioner and his presence in the hospital on 30/31 st

December, 2008 including 1st January, 2009 is concerned, that has

not been disputed. On the contrary, it has come on record that on

2nd January, 2009, when the complaint was lodged, it seems that

the petitioner has got a whiff of the matter against him and he

absented on that day and that is why he was arrested on 3 rd

January, 2009. The plea of the petitioner that he has been falsely

implicated on account of some billing dispute of the complainant

PW-3 and her husband PW-4 with the hospital, has already been

dealt with by the learned Magistrate in detail and disbelieved. The

reason for this disbelief by the learned Magistrate is on account of

two grounds. Firstly, it has been observed by the learned

Magistrate that this line of defence that he has been falsely

implicated on account of billing dispute has not been supported by

either the complainant or her husband in their cross examination,

therefore, it seems that it is an after-thought. Even in his

statement under Section 313, Cr.P.C., this defence of false billing

and the consequent false implication taken by the petitioner has

also although he makes an oblique reference to some dispute.

This aspect has also been dealt with by the learned Magistrate and

disbelieved. Even the learned Additional Sessions Judge did not

seem to have found any merit in this contention of the petitioner. I

do not find any convincing reason to hold differently. On the

contrary, it sounds to me a ridiculous and absurd contention.

Even if there was a billing dispute between the complainant PW-3

and the hospital, as has been sought to be brought about in the

cross-examination of PW-6, Dr. Charu Shrivastava, this is only an

after thought and a false defence on account of the fact that if at all

there was such a dispute, there was no reason for implicating the

petitioner falsely, who is only a IV class employee. The

complainant would have named a doctor, or the owner or the

accountant of the hospital rather than a ward boy with whom she

could not be expected to have any kind of grievance much less

would have been he responsible for inflating the bill. In addition to

the non-putting of questions to the complainant PW-3 and her

husband PW-4 as well as not even taking this defence in the

statement under Section 313, Cr.P.C., corroborates that this is at

best an after-thought in order to wriggle out from the case.

11. So far as the cross-examination of Dr. Charu Shrivastava on these

lines is concerned, I am of the view that she has admitted that she

had no personal knowledge of the incident as she had joined 7-8

months later. So far as the dispute about the billing is concerned,

there may have been some dispute regarding the bill but that is de

hors the illegal conduct in which the petitioner is found to have

indulged and it seems that he has tried to take an advantage of the

same though that too belatedly. I do not, therefore, find any merit

in this submission of the learned counsel for the petitioner to upset

the concurrent finding of fact holding the petitioner guilty of the

most obnoxious crime of outraging the modesty of a woman, while

she was in ICU, under the pretext of examining her.

12. So far as the second ground of there being a variation in the

registration of FIR is concerned, that is of not much consequence

because the FIR has been admittedly registered on the basis of the

statement Ex. PW-3/A given by the complainant PW-3 on which

PW-5 Avnish Singh, SI had made an endorsement and sent 'rukka'

which resulted in registration of FIR. It is possible that the

complainant may also have made a complaint separately as

claimed by him but as the FIR itself has been registered, on the

complaint of the complainant. The complaint of PW-4, Lokesh

Kumar, husband of the complainant, does not detract in any

manner from the credibility of the case of the prosecution.

13. In any event, even if both the complaint and the FIR which was

registered on the basis of the written complaint of PW-3 Neetu

Singh are considered, they do not seem to be contradictory in

material particulars. Therefore, this is only a last ditch effort and

to get an advantage of the fact that more than one complaint was

lodged with the police in writing. This point also, in my view, is of

no relevance.

14. I, therefore, feel that there is no incorrectness, impropriety or

illegality in the judgment and order of sentence passed by the

learned Magistrate on 07.02.2011 and 10.02.2011 respectively or

for that matter, even in the order of confirmation of conviction and

sentence passed by the learned Additional Sessions Judge. As a

matter of fact, the learned Magistrate has let off the present

petitioner with a very moderate sentence of four months. Though,

this Court has a feeling in this regard and this has been noticed by

the learned Additional Sessions Judge also that undue leniency has

been shown to the petitioner.

15. This Court, in exercise of its power of revision, does not intend to

enhance the sentence. I, accordingly, do not find merit in this

Revision Petition and, therefore, the same is accordingly dismissed.

V.K. SHALI,J MAY 24, 2011 MA