Delhi District Court
Sc No. 70/17 State vs . Gaurav Gulati on 4 April, 2018
SC No. 70/17 State Vs. Gaurav Gulati
IN THE COURT OF SH. GAUTAM MANAN
ADDITIONAL SESSIONS JUDGE-FAST TRACK
SOUTH-WEST, DWARKA, NEW DELHI
In the matter of:-
S. C. No. 70/17
FIR No. 510/16
Police Station Vikas Puri
Under Section 376 IPC
State
Versus
Gaurav Gulati @ Arush Malik
S/o Sh. Sanjeev Gulati
R/o H.No. H-173,
East Shalimar Bagh
New Delhi. .....Accused
Date of institution 06.02.2017
Judgment reserved on 15.03.2018
Judgment Pronounced on 04.04.2018
Decision Acquittal
Judgment 1 of 20
SC No. 70/17 State Vs. Gaurav Gulati
JUDGMENT
1. Accused is facing trial on allegations of committing repeated rape on prosecutrix.
2. FIR in question was registered on complaint of prosecutrix alleging that she met accused Gaurav Gulati but at the time of meeting her in 2011 he disclosed his name as Arush Malik. At the time of her first meeting at Barista, prosecutrix told accused that she does not want to indulge in a fling or time pass relationship. Accused assured her that he is serious about his relationship and proposed her for marriage. In February 2012 being aware about their relationship and being elder daughter of her parents were insisting to get married to accused or they will look for a match for her. Accused then told them that he is serious about prosecutrix and wanted to marry her. In November 2013 accused took her to Connaught Place and established sexual relations in his car with her near a restaurant by forcing and assuring to marry her.
Judgment 2 of 20
SC No. 70/17 State Vs. Gaurav Gulati
In January 2014 her friend told her that accused is having Facebook account in name of Gaurav Gulati and then she asked about his real identity after which accused told her that his name is Gaurav Gulati. After which, accused met her father and assured him that he would marry prosecutrix. Prosecutrix alleged that accused gave his residential and factory address to her father which was found fake. Her father after searching factory of father of accused went there. Accused and his father assured father of prosecutrix that accused wanted to marry prosecutrix and his father has no objection. However, they kept on making excuses. On 19.09.2015 prosecutrix met accused and his mother at Barista and on 26.09.2015 accused and his family members went to the home of prosecutrix. Their meeting was fine. On 06.10.2015 prosecutrix called accused on his birthday but he started accusing prosecutrix and also talked rudely to her parents. After that her father continuously met parents of accused and ultimately in January 2016 they demanded Rs. 30 lacs from her father and without informing prosecutrix and her parents on 20.04.2016 Judgment 3 of 20 SC No. 70/17 State Vs. Gaurav Gulati accused got married to another girl. Prosecutrix alleged that accused and his parents cheated her by making false promises of marriage to her and made physical relations with her.
3. Accused was charge-sheeted for offence punishable u/s 376 IPC. Charge for offence punishable u/s 376 IPC was framed against accused on 04.03.2017 to which he pleaded not guilty and claimed trial.
4. Prosecution examined 9 witnesses.
PW Name of witness Nature of Documents proved witness 1 X Prosecutrix Deposed on lines of complaint Ex. PW1/A, her statement recorded U/s 164 Cr.P.C as Ex.
PW1/B, seizure memo of her mobile phone as Ex.PW1/C, screen shots from face book account of accused as Ex.
PW1/D. She proved her mobile phone as Ex. P-1, SIM card as Ex. P-2 and memory card as Ex. P-3.
Judgment 4 of 20 SC No. 70/17 State Vs. Gaurav Gulati 2 Sh. S Father of Supported prosecution case, prosecutrix deposed that despite assurances by accused and his family, they did not agree for the marriage of prosecutrix with accused. 3 P Sister of Deposed that on 26.09.2015 she prosecutrix met accused for a meeting between families to finalize marriage between prosecutrix and accused and marriage between them was almost finalized. 4 SI Sandeep Dabas Police Deposed that he could not provide any assistance in respect of screen shot and URL of Facebook ID as per communication Ex.PW4/A & B. 5 Sukhbeer Singh Nodal Officer, Produced customer application Idea Cellular. form of mobile of prosecutrix as Ex.PW5/A and deposed that call detail records of this number is not available as per certificate Ex.PW5/B. 6 SI Kajal Rani Police Deposed that she interrogated accused in respect of his Facebook ID and seized print outs of its profile page Ex.PW6/B and sent this information to Cyber Cell. 7 Inspector Manoj Incharge, Cyber No information provided in Kumar Cell respect of change of name of Facebook account of accused as per report Ex.PW7/B. Judgment 5 of 20 SC No. 70/17 State Vs. Gaurav Gulati 8 ASI Anil Sharma Investigating Prepared rukka as Ex. PW8/A Officer on complaint of prosecutrix, got prosecutrix medically examined and recorded her statement u/s 164 Cr.P.C, prepared site plan Ex.PW8/C of place of occurrence, arrested accused and got him medically examined, seized mobile of prosecutrix and also documents provided by accused in respect of theft of his car. 9 Sh. Israr Babu Nodal Officer, Proved CAF of mobile no. Vodafone 9999181372 of Adarsh Prakash and in name of Naveen Kumar as per documents Ex. PW9/B to C-1. He proved IP addresses as Ex. PW9/D and certificate u/s 65B Indian Evidence Act as Ex. PW9/D-1.
5. During trial, accused admitted registration of FIR, certificate u/s 65B of Indian Evidence Act in respect of correctness of recording of FIR, recording of statement ofprosecutrix u/s 164 Cr.P.C, her medical examination, his marriage certificate dated 02.12.2016. In view of statement of accused, witnesses cited to prove said documents were dropped.
Judgment 6 of 20
SC No. 70/17 State Vs. Gaurav Gulati
6. In his statement recorded u/s 313 Cr.P.C accused claimed his innocence and stated that prosecutrix lodged a false complaint against him after marriage talks between both the families failed.
7. It is contended on behalf of accused that statements of prosecutrix recorded on different stages of investigations & trial are contradictory. It is submitted that there is no evidence on record to indicate that accused obtained consent of prosecutrix deceitfully nor there is any evidence to substantiate allegations of physical relationship between them.
8. On the other hand Ld Addl. PP for State submits that prosecutrix in all her statements categorically alleged that accused established physical relations with her on promise of marriage which from very beginning was false and therefore in view of Judgment 7 of 20 SC No. 70/17 State Vs. Gaurav Gulati truthful testimony of prosecutrix, accused is liable to be convicted for the offence committed by him.
9. I have heard the rival contentions and have gone through the record carefully.
10. Versions of prosecutrix: After initial complaint, statement of prosecutrix Ex. PW1/B was recorded under Section 164 Cr.P.C. It reads as under:
"In May 2011, through a random call I met a boy he told his name as Arush Malik. Within 2-3 weeks he proposed to me. I clarified that I was only interested in a serious relationship and not time pass. He said he was very much serious about the relation. In June-July 2011 I told my parents about him. He said he wanted to settle as a professional photographer, before he could marry me.
In February 2012 my younger sister got a marriage proposal. My parents told me that since I was elder I should get married before her. I talked to him but he asked me to wait. He told me to divulge about our relation. In 2013 my father started contacting him. On 28.11.2013 he took me to Connaught Place. He parked his car near a Thai restaurant and he had sexual intercourse with me. He always promised to marry me. On that occasion also he promised to marry me. I agreed for sexual Judgment 8 of 20 SC No. 70/17 State Vs. Gaurav Gulati intercourse since he promised to marry me. In January 2014 one of my friend told me that Arush had a Facebook account by the name of Gaurav Gulati. When I asked him he said Arush is his nick name. But his family members denied that his nick name was Arush. My dad and I met Arush at Barista District Centre, Janak Puri in January 2014. There also he assured that he will marry me. He gave his address and the address of his father's factory. The residential address turned out to be fake and the factory address was incomplete. He said that he wanted 2-3 weeks since he had a property dispute with uncle.
Gaurav's father and Gaurav also met me and my father. His father said that his name was not Gaurav. They said that due to property dispute they were not ready for marriage, at that time. My father trusted them and gave some more time. He continued meeting me. But there was no telephonic contact. In 2015 he said every thing was fine in his family and he can talk about marriage. On 19.09.15 he introduced me to his mom at Barista District Centre, Janak Puri. On 26.09.15 Gaurav, his parents and younger brother came to our home. His father said they will invite us but they did not. On 6th October it was Gaurav's birthday, I called to wish him. But he used abusive language and misbehaved with my parents. On 8/9 October my father called his father. Gaurav's father started making excuses to avoid the marriage on different pretexts. Thereafter we had several meetings. His father said I was 2 years elder to his son. He continued giving illogical reasons for avoiding the marriage.
Judgment 9 of 20
SC No. 70/17 State Vs. Gaurav Gulati
In January 2016 family members of
Gaurav raised dowry demand of Rs. 30 lacs. They also finalized 'Roka' ceremony but again said Gaurav was not interested in marriage. They kept changing their statements about mode of payment of dowry. Finally they said they wanted Rs. 30 lacs cash before the 'Roka'. In mid June 2016 through Facebook I came to know that Gaurav got married on 20.4.16 to one girl named Vijaya Dua. I called Gaurav but he didn't pick my call. So I thought it was useless to call him. I and my family faced a lot of mental torture and agony.'
11. In respect of first incident of sexual assault, in all her statements prosecutrix maintained that on 28.11.2013 accused took her to Connaught Place and after parking his car near a Thai restaurant, accused had sexual intercourse with her after promising to marry her.
12. During her cross-examination, prosecutrix in respect of location of alleged place of occurrence testified as under:
"I took IO of the case to the place of occurrence of the first incident but I was not sure of the exact location. I did not point out Thai Restaurant to her."
Judgment 10 of 20
SC No. 70/17 State Vs. Gaurav Gulati
13. Prosecutrix is no stranger to Delhi. She was residing alone and managing her own affairs. Prosecutrix deposed that since 2012 to mid of 2014, she was staying in a Girls PG while preparing for her Civil Service Examinations. In such background, it is least expected from prosecutrix not being able to disclose name and location of Thai restaurant where accused allegedly took her on day of incident.
14. In respect of subsequent incident of sexual assault, prosecutrix deposed that on 7th or 8th September, 2015 she went with accused to PVR Cinema and while they were returning home, accused forced her to have sexual relations with him in the parking area. When she refused for the same, accused convinced her that he has already informed his family about her and assured her that he is going to marry her in the end of year 2015. On the said assurance she agreed to have sex with accused.
Judgment 11 of 20
SC No. 70/17 State Vs. Gaurav Gulati
15. Prosecutrix during course of her cross-examination admitted that she did not mention incident of 7 th or 8th September 2015 of accused forcing her to have sexual relation with him in parking area in her initial complaint Ex. PW1/A as well as in her statement recorded before Ld. Judge as Ex. PW1/B. Though prosecutrix explained that she did not mention it because Investigating Officer (IO) told her that to mention only first incident of sexual assault but her explanation in this regard is hardly believable in view of the fact that Ex PW1/A is a handwritten complaint in handwriting of prosecutrix herself. It is not the case where statement of prosecutrix was recorded by IO rather prosecutrix brought a complaint and handed it over to SHO for lodging FIR, therefore, the missing allegation in respect on incident dated 7th & 8th September 2015 cannot be attributed to IO. Testimony of prosecutrix indicates that she has made material improvements in respect of this incident which does not find mention in her earlier statements.
Judgment 12 of 20
SC No. 70/17 State Vs. Gaurav Gulati
16. Prosecutrix also alleged that in January 2014, her friend told her that the Facebook account made by accused was in the name of Gaurav Gulati. Accused posted his photographs in one Facebook account in the name of Arush Malik and similarly he posted his photographs in his another account which was in the name of Gaurav Gulati. After coming to know about this fact she confronted accused about having two different Facebook accounts. However, no evidence has come on record to substantiate this allegation of prosecutrix nor the said friend of prosecutrix has been examined by prosecution who noticed two Facebook accounts of accused.
17. Prosecutrix deposed that in February 2014, her father went to residential address of accused which was provided to him by accused but that address was found to be incorrect and somebody else found residing in that address. Thereafter, her father went to the address of factory of father of accused and that address was also found to be incomplete and at both addresses Judgment 13 of 20 SC No. 70/17 State Vs. Gaurav Gulati neither accused nor his family was found present. After about 10 days of search, father of prosecutrix was able to find the residential and factory address of father of accused. He met father of accused and in front of his father accused agreed to the proposal of marriage between him and prosecutrix and since then till 19.09.2015 parents of prosecutrix and accused were in regular contact with each other. She also met mother of accused on 19.09.2015 at Barista restaurant.
18. Prosecutrix further explained that on 26.09.2015 parents of accused came to her house and had discussions about marriage in a cordial manner. After family of accused left for their house, father of accused made a call to father of prosecutrix and told him that he was standing outside their earlier house to find out about the antecedents of family of prosecutrix and when father of prosecutrix reached there, none from family of accused was found present there.
Judgment 14 of 20
SC No. 70/17 State Vs. Gaurav Gulati
19. Similarly, PW2 (father of prosecutrix) in his testimony detailed the incident that he went to the address of shop of accused which was given to him by accused but accused was not found there and shop was found locked. PW2 then searched for the shop and factory of father of accused and somehow located it. However, in his cross-examination PW2 failed to disclose the false address given by accused to him nor could he was able to tell name and address of the photographer who eventually gave the address of accused to him.
20. PW2 deposed that on 26.09.2015 accused and his family members came to their house and had conversation regarding marriage. Father of accused took their old residential address where they were earlier residing. PW2 deposed that father of accused after going from there gave a telephonic call to him and told him that they were not residing at given old address. PW2 asked father of accused to stay there for a while and when he reached there he found that father of accused had already left.
Judgment 15 of 20
SC No. 70/17 State Vs. Gaurav Gulati
21. PW2 further deposed that on 06.10.2015, he made a call to accused and said call lasted for about 2-1/2 hours and during this call, accused verbally abused him and misbehaved. On 14 or 15.10.2015, he called father of accused who initially told him that prosecutrix was not interested for marriage and then told that his son is not ready for marriage with prosecutrix. PW2 deposed that he visited factory of father of accused twice or thrice and there father of accused demanded Rs. 30 lacs from him in lieu of marriage. Then he discussed the matter with his family and his family did not agree to fulfill demands of father of accused. On number of occasions he contacted family of accused regarding marriage but they avoided on one pretext or other.
22. PW3 (sister of prosecutrix) during course of her cross-examination testified that many problems arose in finalizing the marriage between prosecutrix and accused such as demand of dowry by accused and his family. PW3 deposed that family of accused was keen to know about their financial status and later on Judgment 16 of 20 SC No. 70/17 State Vs. Gaurav Gulati family of accused felt that family of prosecutrix does not match their status and were unable to meet the demands which were asked from them.
23. In her statement recorded under section 164 Cr.P.C prosecutrix even stated that father of accused had several meetings with her family and stated that prosecutrix was two years elder to his son and gave illogical reasons for avoiding the marriage.
24. From testimony of prosecutrix, her father and sister, it becomes evident that there was mistrust between family of prosecutrix and family of accused. It is in evidence that family of prosecutrix was not satisfied with behavior of accused and as per them accused did not provide them his correct particulars and address. Even father of accused was apprehensive about the antecedents of family of prosecutrix as he could not find old address of prosecutrix when he went there to verify the antecedents of family of prosecutrix. As per prosecutrix father of Judgment 17 of 20 SC No. 70/17 State Vs. Gaurav Gulati accused gave illogical reasons for avoiding the marriage There are allegations against father of accused of demanding dowry as well. All the above noted factors played major role and proved to be an impediment in marriage of accused and prosecutrix.
25. Main gist of prosecution case is that accused obtained consent of prosecutrix to establish physical relations with her on false promise to marry her. In Uday Vs State of Karnatka, 2003(4) SCC 46, Hon'ble Apex Court held as under:
In a case of this nature two conditions must be fulfilled for the application of Section 90 IPC. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception.
26. If we for sake of arguments presume that accused did establish physical relations with prosecutrix even then statements of prosecutrix do indicate that she was fully aware of the moral quality of the act and the inherent risk involved and that she considered the pros and cons of the act. The prospect of the Judgment 18 of 20 SC No. 70/17 State Vs. Gaurav Gulati marriage proposal not materializing had also entered her mind. Thus, her own evidence reveals that she took a conscious decision after active application of mind to the things that were happening.
27. As noted above, there is no evidence to prove conclusively that accused never intended to marry her. There seems to difference of opinion and misunderstandings between family of prosecutrix and accused which came in between their marriage.
28. From above stated discussions it emerges that :
i) Prosecutrix is an educated lady with mature understanding.
ii) There were differences and mistrust between her family and family of accused.
iii) There is material improvement in testimony of prosecutrix to her earlier version in respect of allegations of sexual relationship on 7th or 8th September 2015
iv) Prosecutrix is unable to point out place of occurrence where she claims to have established physical relations with accused for first time.
Judgment 19 of 20
SC No. 70/17 State Vs. Gaurav Gulati
v) There is no evidence on record to establish that accused obtained consent of prosecutrix for physical relations with her deceitfully.
29. Conclusion: From aforesaid discussions, it is evident that prosecution has failed to prove charges against accused. Accordingly, accused stands acquitted. His surety is discharged. Bail bond stands canceled. Accused is directed to furnish a personal and surety bond in sum of Rs. 10,000/- under provisions of Section 437-A Cr.P.C which shall remain in force for period of six months.
File be consigned to record room.
Announced in the open court on 4th day of April, 2018.
GAUTAM Digitally signed by GAUTAM
MANAN
MANAN Date: 2018.04.05 16:53:17
+0530
(GAUTAM MANAN)
ASJ (SFTC) /SOUTH WEST
DWARKA COURTS:DELHI
Judgment 20 of 20