Delhi District Court
State vs Lokesh Aggarwal on 23 January, 2016
In the Court of Ms. Kaveri Baweja
Additional Sessions Judge Special FTC - 2 (Central)
Tis Hazari Courts: Delhi.
Sessions Case No. : 28/2015
Unique ID No. : 02401R0200442015
State versus Lokesh Aggarwal
S/o Shri Anand Swaroop
R/o H.No.384, Pathanpura,
Shahdara, Delhi.
Case arising out of:
FIR No. : 108/2015
Police Station : Burari
Under Section : 376 IPC
Judgment pronounced on : 23.01.2016
JUDGMENT
Prosecution Case:
1. The Accused in the present case has been facing trial for the offence of having committed rape on the Prosecutrix 'S' [name withheld in order to protect her identity] repeatedly, on the basis of complaint made by her at PS Burari. It is alleged that 'S' was residing at Bareily, UP along with her parents and on 03.03.2008 she was married to one Rakesh r/o Trilokpuri, Delhi and one daughter, who is aged about 4½ years was born out of this wedlock. On 17.02.2014, she got divorced from her husband, Rakesh and started living at Sant Nagar, Delhi while her daughter was living her parents. Thereafter, she started working as a maid servant in the house of one Bhagwat Kishore at Sant Nagar, Delhi.
2. Complainant 'S' further stated in her complaint that thereafter she met Accused Lokesh and both of them became friendly. She also alleged that on 02.07.2014 Accused took her to Haridwar where he filled her 'Maang' with Sindoor and both of them started living as husband and wife at H.No.396, Gali No.15, Shivkunj, Sant Nagar, Delhi. However, the accused used to leave the aforesaid house frequently stating that he was going to visit his parents. Subsequently, when complainant made inquiries about the Accused Lokesh, it was revealed that he was already married and by that time she conceived on account of the physical relations with the Accused.
3. Complainant went to PS Burari and made complaint against Accused. At that time, the matter was compromised between both of them and the Accused undertook to bear the expenses and take responsibility of complainant and his child. However, on the next day, Accused left the house stating that he is going to arrange the money for the landlord but he did not return and his phone was also switched off when complainant tried to contact him. The complainant, in these circumstances, approached the PS and got lodged complaint against Accused Lokesh Aggarwal.
4. On the basis of the aforesaid complaint, a case under Section 376 IPC was registered against Accused Lokesh Aggarwal. Complainant was got medically examined and the exhibits were collected from the hospital. Complainant was also produced before the learned MM, where her statement under Section 164 Cr.PC was recorded. Prosecutrix was also got admitted for her abortion in LMHC, however, on account of time out, doctors refused for her abortion.
5. During the course of further investigation accused Lokesh was arrested on 10.02.2015 and his medical examination along with potency test was also got conducted. Thereafter, after completion of investigation in all respects, charge sheet was filed before the court.
Charges:
6. Upon committal of the case and on the basis of material on record, accused Lokesh Aggarwal S/o Sh.Anand Swaroop was charged for offence punishable under Sections 376 [2] [n] IPC vide order dated 30.04.2015. Accused pleaded not guilty and claimed trial when the charge was read over and explained to him.
Prosecution Evidence:
7. Prosecution examined 07 witnesses in support of its case, which include ASI Satyapal Singh, who was examined as PW1. He deposed regarding recording of the FIR on 23.01.2015 and proved its computerized copy as Ex.PW1/A and his subsequent endorsement on the same as Ex.PW1/B.
8. Smt.Manju was examined as PW3. She being the registered owner of H.No.396, Gali No.15, Shivkunj, Sant Nagar, Burari, Delhi deposed regarding letting out of the same to Accused Lokesh and his wife i.e. Prosecutrix 'S' in the month of August, 2014 at a monthly rent of Rs.2000/. She also deposed that both Accused and Prosecutrix lived there as husband and wife for about 1½ month and had vacated her house thereafter.
9. Smt.Khashboo examined as PW4 deposed that she is living at H.No.396, Gali No.15, Shivkunj, Sant Nagar, Burari, Delhi for the last three years and that in the month of August, 2014, Smt. Manju (PW3) had let out one room on the first floor of her house to Accused Lokesh and his wife i.e. Prosecutrix 'S' at a monthly rent of Rs.2000/. She further deposed that both Accused and Prosecutrix lived there as husband and wife for about 1½ month and had vacated her house thereafter.
10. PW5 Smt.Sunita deposed that she is the registered owner of H.No.330, Gali No.12, Chandan Vihar, Sant Nagar (West), Burari, Delhi and that in the month of October, 2014, she had let out the ground floor of her house to Accused and his wife i.e. Prosecutrix 'S' at a monthly rent of Rs.2000/. She further deposed that both Accused and Prosecutrix lived there as husband and wife for about 1½ month and thereafter Accused Lokesh left Prosecutrix 'S' behind and went away. Prosecutrix 'S' also left from there 45 days thereafter and that her rent was not paid by them.
11. PW6 Dr.Kamini Singhal deposed regarding recording of the alleged history as told by the Prosecutrix 'S' when she was brought before her for her medical examination. PW6 generally examined her vide MLC Ex.PW7/A and thereafter referred her to SR (Gyne) for her detailed opinion.
12. PW7 Insp.Mukesh Devi deposed regarding recording of the statement of the Prosecutrix (Ex.PW2/A) on 23.01.2015, on the basis thereof she got the case in hand registered against Accused. She further deposed regarding the investigation conducted by her in this case, preparation of the charge sheet and filing of the same before the court. She also deposed that after filing of the charge sheet and delivery of the child of Prosecutrix, she sent the blood sample of Prosecutrix 'S' and blood sample of the baby along with exhibits of Accused for DNA examination.
However, since the Accused did not dispute the paternity of the child, need of DNA report was not solicited.
13. Prosecutrix 'S' was examined as PW2. She deposed that her date of birth is 01.07.1990 and that she had resided along with her parents at Bareily, UP till 2012. She further deposed that on 03.03.2008, she got married to one Rakesh r/o Trilokpuri, Delhi and out of the said wedlock, one daughter who is now 4 ½ years old was born. Howeer, she got divorced from Rakesh on 17.02.2014. Thereafter, she started living along at Sant Nagar, Delhi and that her daughter was living with her parents. She started working as a maid servant in the house of one Bhagwat Kishore at Sant Nagar, Delhi.
14. After identifying Accused Lokesh Aggarwal in the court, PW 2/Prosecutrix further deposed that Accused used to visit the house of Bhagwat Kishore who was known to him and that both she and Accused became friendly. She further deposed that on 02.07.2014, Accused took her to Haridwar where Accused filled her 'Maang' with Sindoor and assured her to perform the proper marriage after some time. They returned to Delhi on 05.07.2014. After about 1½ month, Accused took a room on rent in H.No.396, Gali No.15, Shiv Kunj, Sant Nagar, Burari, Delhi and kept her there along with him for about 1 ½ month as husband and wife.
15. Prosecutrix/PW2 further deposed that during this period Accused established physical relations with her and that he used to leave that house frequently stating that he is going to visit his parents.
16. Thereafter Accused also took another room on rent in a house at Gali No.12, West Sant Nagar, Delhi and lived there in that room with the Accused for about 23 months as husband and wife. She also deposed that physical relations were also established between both of them during this period. She also deposed that when she used to ask the Accused for proper marriage, he used to assure her that he will marry her after some time as he is facing some financial problems. Accused always told her that he is unmarried and used to leave her alone frequently for one or two days stating that he is going to meet his parents.
17. PW2 also testified that during her stay with the Accused in the house at Chandan Nagar, she came to know from the friends of Accused that he is already married and at that time, she was having pregnancy of three months due to physical relations with Accused. She further deposed that she went to PS Burari and made a complaint against the Accused. Accused was called to the PS where he stated before the police that he is ready to bear the expenses and take responsibility of Prosecutrix and his child and the matter was compromised. Thereafter, Prosecutrix along with Accused returned to a rented house i.e. H.No.330, Gali No.12, Chandan Vihar (West), Sant Nagar, Burari, Delhi.
18. PW2 further deposed that on the next day, Accused left the said house stating that he is going to arrange money, but he did not return. She tried to contact Accused on his phone but his phone was switched off. She approached the senior police officers and gave complaint in the office of DCP at Civil Lines and on the directions of DCP, police of PS Burari recorded her statement at PS Burari on 23.01.2015 (Ex.PW2/A). She further deposed regarding the factum of recording of her statement under Section 164 Cr.PC before the learned MM and correctly identified her signatures on the same. She proved the same as Ex.PW2/B.
19. On 15.07.2015, she gave birth to a son at LHMC, who was born out of physical relations between her and Accused, which fact has not been disputed by the Accused. She also produced the photocopies of the Divorce Deed and settlement arrived between her and her earlier husband Rakesh Kumar, both dated 17.02.2014 along with copies of affidavits of herself and her husband Rakesh Kumar and stated that the originals of the said documents retained by her husband Rakesh Kumar. She also deposed that during her relation with the Accused, she reminded him 23 times to marry her, but he used to say that he does not have sufficient money to solemnize marriage. Thereafter, when she confronted the Accused after coming to know that he was already married, Accused accepted the same and told her that he has already filed a divorce petition in order to seek divorce from his wife. She also voluntarily deposed that now Accused has divorced his previous wife and married her as per Hindu Rites and that they are living happily with their 07 months old child and that she do not want to pursue this case.
20. A court question was also put forth to Prosecutrix/PW2 during the course of her examination ascertaining correctness of her two versions to the effect that on the one hand, she deposed that accused elicited her consent to establish physical relations with her on the assurance of false promise of marriage and established physical relations with her on that account and later on she came to know that he was already married on the other hand, whereas later she deposed that the physical relations were established between her and Accused with her consent despite the fact that she knew that the Accused was already married. She clarified that both of them developed liking to each other and indulge in physical relations with her consent and that she was also aware of the fact that the Accused was married. She further testified that she continued her relations with the Accused as accused had disclosed her that he was already married and had filed a divorce petition seeking divorce from his previous wife and that Accused never refused to marry her.
21. During the course of her examination, when Prosecutrix 'S' was further questioned as to why did she make the present complaint against the Accused to which she replied that she made the present complaint Ex.PW2/A against the Accused as he was delaying his marriage with her due to the reason that he was not earning sufficient money to meet out the expenditure likely to incur on their marriage.
22. The Prosecutrix 'S' (PW2) was declared hostile by the Prosecution and was crossexamined by learned Addl. PP. Despite her extensive crossexamination, she failed to support the case of the Prosecution.
Statement of Accused:
23. Statement of Accused Lokesh Aggarwal was recorded under Section 313 Cr.PC, wherein entire incriminating material was put to him. Accused claimed his false implication in this case and stated that Prosecutrix 'S' made complaint against him due to misunderstanding as it was taking some time for him to marry her. He further stated that now he has married her and he will bear the responsibility and expenses of Prosecutrix and their child. He however preferred not to lead any evidence in his defence.
Arguments, Analysis & Findings:
24. I have heard the submissions made before me and also gone through the evidence on record.
25. It is an admitted fact that both Prosecutrix 'S' and Accused Lokesh Aggarwal were known to each other prior to lodging of the FIR and that on 02.07.2014 both of them went to Haridwar and after returning from there, they resided as husband and wife at Delhi in a rented accommodation at H.No.396, Gali No.15, Shiv Kunj, Sant Nagar, Burari, Delhi and thereafter at Gali No.12, West Sant Nagar, Chandan Vihar, Delhi for a period about 1½ month in each house, which fact has been duly proved on record by the testimonies of PW3 Smt.Manju, PW4 Smt.Khushboo & PW5 Smt.Sunita, besides Prosecutrix 'S'.
26. It is apparent upon a bare perusal of testimony of Prosecutrix PW2 that she became friendly with the Accused when he used to visit the house of Bhagwat Kishore, where she was working as a maid servant. Prosecutrix 'S' also deposed that she had made the complaint Ex.PW2/A against the Accused as he was delaying his marriage with her due to the reason that he was not earning sufficient money to meet out the expenditure likely to incur on their marriage.
27. More so, during the course of her crossexamination by the Defence, Prosecutrix 'S' admitted that when she met the Accused for the first time, she developed liking towards him and that both of them agreed to marry each other. She further admitted that they indulged into physical relations on account of their liking to each other and also decided to marry. She further admitted that during his relations with her, Accused had told her that he had already filed a divorce petition seeking divorce from his previous wife and it was well within her knowledge that Accused was already married. In the same breath, she also admitted that the physical relations between her and Accused were established with her consent and that Accused never refused to marry her and finally married her.
28. Besides that aforesaid, PW2/Prosecutrix also clarified that despite having knowledge of the fact that the Accused was married, she indulged in physical relation with him with her consent and continued her relations with the Accused as he had told her that he was already married and had filed a divorce petition seeking divorce from his previous wife and that he never refused to marry her. PW2 further testified that she made the complaint Ex.PW2/A as Accused was delaying his marriage with her due to his financial problem.
Conclusion:
29. For the foregoing reasons, particularly in the light of deposition of PW2 Prosecutrix 'S', wherein she admitted her relations with the Accused to be consensual, coupled with her voluntary depositions to the extent that she had made the complaint Ex.PW2/A against the Accused merely as he was delaying his marriage due to hardships faced by him besides his financial constraints, I find that there is no material on record whatsoever for convicting the Accused for the offence with which he was charged.
30. Consequently, Accused Lokesh Aggarwal S/o Sh.Anand Swaroop is hereby acquitted of the offence under Section 376 [2] [n] IPC. His bail bond stands cancelled. Surety is hereby discharged. File be consigned to Record Room.
Announced in the Open Court
on 23rd day of January, 2016 (Kaveri Baweja)
Additional Sessions JudgeSFTC2 (Central)
Tis Hazari Courts: Delhi.