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State vs . Umesh Aggarwal S.C. No. 151/11 on 20 April, 2012

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                       State Vs. Umesh Aggarwal  S.C. No. 151/11



 IN THE COURT OF MS. RAJ RANI MITTRA: ASJ - 05 : SOUTH - EAST, 
                          SAKET COURTS, NEW DELHI



                                                 S.C. No. 151/11
                                                 FIR No. 83/10
                                                 U/s 376 IPC
                                                 P.S. Greater Kailash­I


State                       Vs.                  Umesh Aggarwal
                                                 S/o Sh. Om Parkash Aggarwal,
                                                 R/o B­106, Jawahar Nagar,
                                                 Janta Colony, Jaipur


                   Date of Institution           :           07.05.2011
                   Date of Arguments             :           20.04.2012
                          Date of Judgment       :           20.04.2012


JUDGMENT

The case of the prosecution is that on 11.04.2010, complainant / prosecutrix Miss X filed a complaint to Police Station Greater Kailash that she had filed a case of sexual harassment to the National Commission for Women against one Umesh Aggarwal. She is being threatened by one Karan Kapoor telephonically to withdraw the case against Umesh Aggarwal. On 26.04.2010, National Women Commission forwarded a complaint of prosecutrix Miss X to Police Station Greater Kailash. On inquiry it was found 2 State Vs. Umesh Aggarwal S.C. No. 151/11 that the same complaint was sent to SSP Jaipur by the National Commission of Women on 17.03.2010 for taking the necessary action. On the statement of complainant the present case was registered against accused Umesh Aggarwal. During the investigation of the case the complainant was got medically examined at AIIMS Hospital and doctor preserved the vaginal swab of the victim. Accused was arrested in this case and was released on bail as he has obtained anticipatory bail orders.

2 After supply of documents, arguments on charge were heard and charge U/s 376 IPC was framed against the accused person, to which he pleaded not guilty and claimed trial.

3 Prosecution examined seven witnesses in support of its case. 4 PW­1 Mohit Bhatt deposed that on 09.06.2010, he was working as General Manager in Cabana Hotel, Greater Kailash­I. On that day IO of the case met him in the Hotel and he provided him the photocopy of register of the Hotel i.e. entries about Umesh Aggarwal and Prosecutrix Miss X check­in the Hotel. He proved the photocopies of the relevant record of the above said entries as Ex. PW1/A, PW1/B and PW1/C, bearing his signatures at Points A. He deposed that at the time of check­in in the Hotel the customers provide their I.D. proof. He proved the copies of I.D. proof of Prosecutrix Miss X and Umesh Aggarwal as Ex. PW1/D, PW1/E and PW1/F, bearing his signatures at Points A. He proved the seizure memo of documents as Ex. PW1/G, bearing his signatures at Point A. He further 3 State Vs. Umesh Aggarwal S.C. No. 151/11 deposed that he also provided the three computer generated bills to the IO, which are Ex. PW1/H­1 to H­3, bearing his signatures at Point A. The witness was not cross­examined by or on behalf of accused. 5 PW­2 Const. Vijender deposed that on 03.11.2010, he was posted at Police Station Greater Kailash. On that day he had collected the exhibits and sample seal of the present case from MHC(M) and deposited in FSL, Rohini and after depositing the same he obtained receipt and handed over the same to MHC(M). He further deposed that till then case property remained in his possession it was not tempered with in any manner. The witness was not cross­examined by or on behalf of accused. 6 PW­3 complainant / prosecutrix Miss X deposed that in the year 2009 she was working as Anchor and Model upto the period of December, th th 2009. On 18 or 19 day of December, 2009, she was contacted by Mr. Karan who is a Coordinator in Mumbai. That he approached her for the assignment in Music Album and he sought her profile and also informed her that the person who was interested to make Music Album belongs to Jaipur. She provided her profile to Mr. Karan. He advised to personally meet accused in Jaipur. So she reached Jaipur on 19.12.2009 and met accused. Accused picked her from Jaipur Airport and stayed in Ramada Hotel, Jaipur, which was booked by accused. She discussed the matter with accused and during said meeting accused assured her to finance the Album in Mumbai after discussion with Mr. Karan. On the next day she left Jaipur and at that 4 State Vs. Umesh Aggarwal S.C. No. 151/11 time accused dropped her at Jaipur Airport. At that time accused proposed her for friendship. Thereafter, she went back to Mumbai and after reaching Mumbai. They kept on touch on phone.

7 Prosecutrix Miss X further deposed that on 02.01.2010, she came to Delhi. Accused telephoned her and asked if she was interested in going to Vaishno Devi as he alongwith his friends was going there. The programme of his friends was subsequently cancelled prior to his visit to Delhi. Accused had stayed at Hotel Cabana, Greater Kailash­I. She visited him and returned to her house on that day. Next day she and accused started for Vaishno Devi in a taxi which was hired by accused from Jaipur itself. On the way she and accused saw a number of accidents due to bad weather, therefore, she and accused stayed at Ambala in a Hotel. She and accused got intimated in the Hotel. Thereafter, she and accused returned back to Delhi on the next day. Accused went back to Jaipur and she stayed in Delhi. Thereafter she and accused kept in touch on phone for about 15 th th days. On 18 or 19 January, 2010 accused came to Delhi as he was going to Hongkong for some business trip and he stayed in Hotel Cabana, Greater Kailash. She went to meet accused and stayed there for night. Accused took his flight to Hongkong the following day. She and accused kept in touch on phone for about 2­3 days. Thereafter, accused stopped taking her call and did not even reply to her messages. She tried to contact him from different phone numbers, but he did not respond. She had also tried his land 5 State Vs. Umesh Aggarwal S.C. No. 151/11 line number at Jaipur, but was informed that he was out of India. She became frustrated. She discussed the matter with her friends. Ultimately she lodged the complaint with the police. She proved her complaint Ex. PW3/A. During investigation her statement was recorded by the Ld. Metropolitan Magistrate at Patiala House Courts. She proved her statement recorded U/s 164 Cr.P.C. Ex. PW3/B. She further deposed that on her identification accused Umesh Aggarwal was arrested and proved his arrest memo Ex .PW3/C. 8 PW­3 Prosecutrix Miss X was declared hostile by Ld. Addl. PP for State. In her cross­examination by Ld. Addl. PP she deposed that her statement Ex. PW3/A was not completely read over to her by the police. She denied that she had stated in her complaint Ex. PW1/E that when accused dropped her at Airport, he told her that he wanted to marry with her and that she had replied that she had not thought over it and left for Mumbai. The witness was confronted with her complaint Ex. PW3/A, wherein it was so recorded. She denied that when accused visited in Delhi on 01.01.2010 and stayed in Delhi with her at Cabana Hotel, Greater Kailash­I, where he told that after their visit to Vaishno Devi accused would talk to his father about their marriage. She admitted that she and accused had stayed at Batra Palace Hotel in Ambala. She denied that she had stated in her complaint that during their stay in Batra Palace Hotel in Ambala, accused tried to make physical relation with her in the night against her wishes, on 6 State Vs. Umesh Aggarwal S.C. No. 151/11 her objection accused stated that there was nothing wrong in it as they are to get married as he would talk to his father about the settlement of date of their marriage on their return from Vaishno Devi. She was confronted with her complaint where this fact is found recorded. She admitted that accused had come to Delhi on his way to Hongkong on 20.01.2010. She also admitted that during his stay at Hotel Cabana on 20/21.01.2010 accused again made physical relations with her. She also admitted that she had told police that when she talked to father of accused on phone, she was informed that accused was already married for about 4­5 years and was also having two children. She denied that she had stated to the police in her complaint that accused on false assurance of marriage had made physical relations with her and on asking about the photographs of children in his mobile phone, he pretended that the photographs were of the children of his brother. She was confronted with her complaint where this fact is found recorded. She denied that accused got physical relations with her on the false proposal of marriage.

9 In her further cross­examination by Ld. Addl. PP for State she admitted that on 21.07.2010 she alongwith IO went to the Court of Ld. Metropolitan Magistrate in Patiala House for recording her statement U/s 164 Cr. P.C. She admitted her signatures on statement Ex. PW3/C­1. She admitted that Ld. Metropolitan Magistrate recorded her statement as per her version. She admitted that she gave her statement to the police on 7 State Vs. Umesh Aggarwal S.C. No. 151/11 17.06.2010, which is Ex. PW3/D. She did not remember that in Jaipur when she noticed in the Hotel record accused book a room with the name of Mr. & Mrs. Umesh Aggarwal and at that time accused replied that due to unnecessary inquiry regarding the I.D. proof he had given these particulars in Hotel Ramada. She denied that she had stated to the police in her statement that accused used to talked with her for about 2/3 hours in the night on every day. She admitted that she had stated to the police that on the advise of her friends she sent a written complaint regarding sexual harassing in the name of marriage to the President National Women Commission. She denied that she had stated to the police that her complaint was referred by the National Women Commission to Jaipur, so accused discovered the fact of complaining against him, so Karan Kapoor threatened her on telephone to withdraw her complaint otherwise he will kidnap her and thereafter she came to know that Karan is also in connivance with accused. She denied that she has been won over by the accused and for that reason she has not supporting the prosecution version. 10 In her cross­examination on behalf of accused, she deposed that she did not remember the E­mail I.D. of Karan and her E­mail I.D. was [email protected] . She denied she was having another E­mail I.D. by the name of [email protected]. She did not remember whether Karan was maintaining E­mail I.D. as [email protected]. She did not remember whether she used to contact with accused on his E­mail I.D. 8 State Vs. Umesh Aggarwal S.C. No. 151/11 [email protected] by using E­mail I.D. [email protected]. She did not remember if she had deposited Rs. 74,000/­ on 21.12.2009 in her account no. 52110438473. She deposed that she had visited Jaipur only once on 19.12.2009 when she met accused and returned to Mumbai on 20.12.2009. She did not remember whether Rs. 49,000/­ was deposited in her account from Jaipur on 24.12.2009. She stated that it might be possible, but she did not remember whether the said amount was deposited by accused in her account from Jaipur. She admitted that accused never had any physical relationship with her by force or by making false promise and representation of getting married with her. She also admitted that she developed friendship with accused and no rape was committed upon her by accused.

11 PW­4 HC Vijay Singh deposed that on 22.06.2010, on the instructions of IO, he collected all relevant exhibits of the present case from MHC(M) vide R.C. No. 16/21/10 and deposited the same at FSL, Rohini and obtained the receipt for depositing and returned back to P.S. and handed over the receipt to MHC(M). He deposed that till the case property remained in his possession it was not tempered with in any manner. PW­4 was not cross­examined by or on behalf of accused.

12 PW­5 HC Devender deposed that on 08.06.2010, he was working as Duty Officer. At about 3.45 PM Inspector Ram Kishan produced a teheir before him for registration of the case and on the basis of said tehrir 9 State Vs. Umesh Aggarwal S.C. No. 151/11 he registered FIR no. 83/10, copy of which is Ex. PW5/A. He had also made endorsement on the original tehrir Ex. PW5/B. Witness was not cross­ examined by or on behalf of accused.

13 PW­6 Keshav Pratap Singh has brought the summoned record. He deposed that he had handed over the copies of the original summoned record i.e. registration card, Vat invoice with copy of payment slip of Axis Bank, photocopy of driving licence of Umesh Aggarwal, room reservation slip and two room service bills to the police on 28.05.2010. He proved the copy of registration card as Ex. PW6/A, Vat Invoice as Ex. PW6/B, copy of payment slip of Axis Bank as Ex. PW6/B1, copy of driving licence as Ex. PW6/C, room reservation slip as Ex. PW6/D and two room service bills as Ex.PW6/E (colly). Witness was not cross­examined by or on behalf of accused.

14 PW­7 Inspector Ram Krishan deposed on the lines of prosecution case. He proved statement of prosecutrix as Ex. PW3/A, his endorsement on it Ex. PW7/A. He also proved the seizure memo of exhibits seized by the doctor Ex. PW7/B. He proved the photocopy of the hotel record regarding stay of prosecutrix with accused between 03.01.2010 to 04.01.2010 which were seized vide memo Ex. PW1/G. He proved the record of stay of accused with prosecutrix in Hotel Batra Palace at Ambala which was collected by him and taken into possession vide memo Ex. PW7/C. He deposed that he had moved application for supply of copy of 10 State Vs. Umesh Aggarwal S.C. No. 151/11 statement of prosecutrix recorded U/s 164 Cr. P.C., which is Ex. PW7/D. He proved the disclosure statement of accused Ex.PW7/E. He proved the arrest memo of accused Ex. PW3/C and his personal search memo Ex. PW7/F. He deposed that after medical examination of accused, SI Krishan Kumar returned at P.S. and produced sealed parcel duly sealed with seal of AIIMS Hospital before him which he had taken into possession vide seizure memo Ex. PW7/G. He deposed that during investigation he had recorded statement of witnesses and received FSL report, which are Ex. PW7/H, PW7/I and PW7/J. 15 In his cross­examination he denied that he tampered the call details of mobile phone of accused or that he did not deliberately put on record the call details of accused from 23.12.2009 to 26.12.2009. He also denied that he did not conduct proper investigation. 16 Accused in his statement recorded U/s 313 Cr. P.C. deposed that prosecutrix Miss X came into his contact through one Karan whose E­mail ID is [email protected]. Prosecutrix was having the E­mail ID [email protected] and he used to conversate with her through my E­mail ID [email protected]. He made payment of Rs. 1,47,000/­ by way of depositing the same in the account number provided by Karan. Thereafter, he became friendly with prosecutrix and also paid Rs. 49,000/­ to her by way of depositing the same in her account on 24.12.2009. He never made any promise to her for marriage. He is a married person having 11 State Vs. Umesh Aggarwal S.C. No. 151/11 two children and this fact was within the knowledge of prosecutrix Miss X. He also handed over the copy of all the E­mails to the IO during the investigation which are Ex. PW7/DA. That he has been falsely implicated in the present case. That he is innocent.

17 I have heard arguments at length and carefully perused the material place before me.

18 Section 375 IPC defines rape as under:­ A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of six following descriptions:­ First.­ Against her will.

Secondly.­ Without her consent.

Thirdly.­ With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

Fourthly.­ With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly.­ With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

State Vs. Umesh Aggarwal S.C. No. 151/11 Sixthly.­ With or without her consent, when she is under sixteen years of age.

19 In the case in hand there is no dispute regarding the age of the prosecutrix who was admittedly 24 years old at the time of alleged incident. Thus, to prove an offence U/s 375 IPC, which is punishable U/s 376 IPC, the prosecution had to prove that the sexual intercourse with the prosecutrix Miss X had taken place, for our purposes­against her will or without her consent. It is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt so as to convict him for any offence. To prove an offence U/s 375 IPC the evidence of the prosecutrix is most important and the Courts have even convicted the accused on uncorroborated testimony of the prosecutix. In the case in hand prosecutrix who has been examined as PW­3 has completely turned hostile and was cross­examined by Ld. Addl. PP for State, wherein she herself stated in so many words that accused had never had any physical relationship with her by use of force or by making any false promise or representation and has denied that any act was done by the accused without her consent or against her will. The other witnesses are formal in nature and have only proved documents to the effect that accused alongwith prosecutrix Miss X had visited certain places i.e. Jaipur, Delhi, Ambala. Since the prosecution has not been able to prove the main ingredients of Section 375 IPC, benefit goes to the accused. Accused Umesh Aggarwal is hereby acquitted for offence punishable U/s 376 IPC. 13

State Vs. Umesh Aggarwal S.C. No. 151/11 His bonds are cancelled and surety discharged. File be consigned to record room.

Announced in the open Court on the 20 day of April 2012 st (RAJ RANI MITTRA) Additional Sessions Judge ­05/SE Saket Courts, New Delhi