Delhi District Court
State vs Shiv Om Aggarwal on 5 July, 2012
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IN THE COURT OF MS. VANDANA JAIN :
METROPOLITAN MAGISTRATE : MAHILA COURT (E) :
KARKARDOOMA COURTS : DELHI
FIR No. 351/2010
P.S. Jagatpuri
U/s 377/506 IPC
State VS Shiv Om Aggarwal
ORDER ON CHARGE:
1.By this order, I shall decide the point of charge on which I have heard arguments from both sides and have perused the record carefully.
2. As per the allegations levelled in the complaint moved by the father of victim Ayushi, she was sent to Brain Development Programme at the Reiki Centre of accused Shiv Om Aggarwal, located at the basement of his own house at 16-A, Gali No.9, South Anarkali Vistar, Delhi - 110051 since January 2010on every Sunday from 5.00am to 6.00am or from 4.00pm to 5.00pm. There were 7-8 other children in the class and on 16.7.2010 when Ayushi came back home she was found sad and when she was asked about the incident and then she told her maternal grand mother that accused Shiv Om Aggarwal used to take her in the cabin wherein the mattress was lying on a table and accused used to remove her clothes and used to touch her body. It is also alleged that he used to insert finger in the vagina of girl and when she used to cry he used to threat her by saying that he would kill her FIR No. 351/2010 State Vs Shiv Om Aggarwal 2 parents. It is also alleged that on one occasion accused removed his clothes and ejaculated some gel from his penis. It is further alleged that on one occasion when all the children left, accused forcibly pulled Ayushi and took her to the cabin and he also threatened her with a knife.
3. Counsel for accused has argued that the allegations even if taken on its face value itself constitute an offence punishable U/s 354 IPC. Whereas Ld. APP for state submits that the allegations may constitute an offence U/s 377 IPC as it is one of unnatural form of perpetuated sexual behaviuor. He further submits that there are allegations of criminal intimidation as well. Therefore, charge for the offence punishable U/s 377/506 IPC is liable to be framed against accused.
4. He has also brought the attention of this court to the statement of victim U/s 164 Cr.P.C. wherein Ayushi stated that she stated that she started attending Brain Development classes from January/February 2009 and the classes were conducted in the office of Shiv Om Aggarwal and nine children used to come there and accused used to ask her to sit at the back seat and he use to put his hand in her underwear. She further stated that accused started doing the same after 2-3 months of the date when she started attending the classes. He also threatened her not to tell the same to her parents. She also stated that accused used to FIR No. 351/2010 State Vs Shiv Om Aggarwal 3 insert his fingers in her vagina and used to remove her clothes. He also showed knife to her and stated that in case she objected he would kill her parents. She further stated that on one occasion accused inserted two fingers in vagina and when she cried at that time some other children also came there. He also used to ask her to hold his penis. He has placed reliance upon judgment titled as Brother John Antony VS The State 1992 CRL.L. J. 1352 in this regard wherein it is held as under:-
" The alleged over acts attributed to the petitioner in all the three cases would fall under two categories:-
(1) Insertion of the penis of the petitioner into the mouth of the victim boy and doing the act of incarnal intercourse upto the point of ejaculation of semen into the mount; and (2) Manipulation of movement of penis of the petitioner whilst being held by the victim boys in such a way as to create an orifice like thing for making the manipulated movements of insertion and withdrawal up to the point of ejaculation of semen."
5. Ld. APP further submits that the above facts of complaint moved by the father of victim and other family members U/s 164 Cr.P.C. bring the act of accused within the category of discussed above. In the aforesaid judgment ingredients of Section 377 are clearly fulfilled.
6. Heard. Record perused.
FIR No. 351/2010 State Vs Shiv Om Aggarwal 4
7. It is worthwhile to note here that at the time of registration of FIR the statement of victim was not recorded U/s 161 Cr.P.C. and complaint was registered at the instance of father of victim. Thereafter, statement of victim U/s 161 Cr.P.C. was recorded. As far as Section 377 IPC is concerned the section only provides for punishment for carnal intercourse. Carnal intercourse in its literal sense consists penetration per anus. There are no allegations of anal intercourse in the present case. However, there are allegations of asking of holding of his penis by the accused to the victim. The aforementioned allegations are mentioned in the statement of victim U/s 164 Cr.PC. However in the statement of father of complainant there are allegations of ejaculation of semen, but the same are not mentioned in the statement of victim recorded U/s 164 Cr.P.C.
8. Though the allegation as alleged ought to be covered U/s 377 IPC. There are several recommendations of various courts in this regard throughout the country. However, nothing concrete has come so far, in order to punish those who are guilty of such serious and grave offences. These alleged only entails Section 354 IPC which provides any punishment for outraging the modesty of a woman either intentionally or knowingly and the punishment is very less as compared to the gravity of the crime. The allegations as made part in the present FIR are far more serious but we are FIR No. 351/2010 State Vs Shiv Om Aggarwal 5 bound by the rule of law stricta senso. The allegations at this stage do not come within the purview of Section 377 IPC. As regards brother John Anthony case, the alleged acts definitely do not fall within first category. As there is no allegations of inserting of penis into the mouth of victim. As far as second category i.e. manipulation and movement of penis while being held by the victim in such a way as to create and orifice like thing for making the manipulated movement of insertion and withdrawal till ejaculation of semen is concerned, the statement of victim U/s 161 Cr.P.C. does not contain these allegations. There is only allegations of holding of penis by the accused by there is no allegation of ejaculation of the same in consequence of holding of penis. Hence, notice is liable to be framed U/s 354 IPC. Section 506 is clearly made out as there are clear allegation of criminal intimidation to kill her parents and showing of knife in case she does not allow the accused to do the alleged acts.
9. Keeping in view the aforesaid discussions, charge for the offence U/s 354/506 II IPC is liable to be framed against the accused. Accordingly charge for the offence punishable U/s 354/506 II IPC is framed against the accused to which he pleads not guilty and claims trial. Put up on 5.11.2012.
Announced in the Open Court (Vandana Jain)
On 05.7.2012 MM/Mahila Court (E)
FIR No. 351/2010 State Vs Shiv Om Aggarwal
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FIR No. 351/2010 State Vs Shiv Om Aggarwal