Delhi District Court
State vs Gaurav Aggarwal//Ps - Alipur//Fir ... on 3 October, 2019
IN THE COURT OF SHRI UMED SINGH GREWAL:
ADDITIONAL SESSIONS JUDGE:SPECIAL FAST TRACK
COURT:ROHINI :DELHI
Sessions Case No : 57768/16.
STATE
V/S
GAURAV AGGARWAL,
S/O. SH. NARESH AGGARWAL,
R/O. VILLAGE - BAKHTAWARPUR,
DELHI.
FIR No : 303/13.
Police Station : ALIPUR.
Under Section : 376/323 IPC.
Date of Committal to Sessions Court: 17.12.2013
Date on which Judgment reserved: 19.09.2019
Date on which Judgment announced: 03.10.2019
Present: Shri V.K. Negi, ld. Addl. PP for State.
Shri Pradeep Rana, ld. Counsel for accused.
JUDGMENT
1. The victim alongwith her brother and sisters was tenant in the house of one Anandi since 2008. The accused is son of sister of Anandi and was also residing in that house. The prosecutrix was STATE VS GAURAV AGGARWAL//PS - ALIPUR//FIR NO.303/13//S.C. NO.57768/16. PAGE 1 OF 18 pursuing graduation and the accused also used to study. He used to go to the room of the victim on one pretext or the other where both would talk to each other; frequent talking resulted into friendship. He promised her in August, 2009 that he would marry her and establish physical relations against her will on that promise. Thereafter, the sexual intercourse was common on that promise. But later, he refused to marry her and also started threatening her and they were thrown out of the house.
3. Charge under section 376/323 IPC was framed against accused on 04.09.2014 to which he pleaded not guilty and claimed trial.
4. In order to prove the case, the prosecution examined fourteen witnesses.
5. Prosecutrix deposed as PW9 that they were tenants in the house of accused's Mausi Anandi; During those days, she was studying Accounts Telly Course in Mahatama Gandhi University. Her mother was in depression and hence, she used to go to upstairs for study where accused also used to come and in this way, both started talking each other. She further deposed that accused told her one day that he loved her and wanted to marry her. One fine day, when her mother and brother were away to her native village in Bihar and she was alone at house, accused came to her room and expressed desire to marry her and under that promise, he established physical relation. She next deposed that she asked accused in 2009 to marry her, but he refused saying that he would complete his study first. When she insisted for marriage, he came to her room and asked to close the eyes, which she did. When she opened the STATE VS GAURAV AGGARWAL//PS - ALIPUR//FIR NO.303/13//S.C. NO.57768/16. PAGE 2 OF 18 eyes she found that he had put sindoor in her maang and had made her to wear mangalsutra saying that henceforth they were husband and wife and her would marry her publicly in future after getting job. He kept on establishing physical relations for 23 years on that promise. She further deposed that she asked him one day that his study was going to complete shortly and so, he should tell his family members that he would marry her shortly. He replied that he had filled up her maang and hence, she should trust him and that he would inform his family members about the forthcoming marriage after getting job. She next deposed that when her insistence for marriage became frequent, accused took her 10 th & 12th class certificates and identity proof for the purpose of marriage and took her to Tis Hazari courts where he obtained her signatures on 45 papers on which her passport size photographs were affixed at two places. He showed her those documents and assured that they had married as per those papers. The documents were retained by the accused assuring that he would supply her copies thereof which he never did. She next deposed that whenever she asked for marriage documents, the accused would beat and threaten her. When beating became frequent, she told all the facts to his mausi. But she also beat her saying that she would not allow her to become bride of her house. Accused was also present at that time and when she asked him to hand over marriage papers, he threatened to forget the papers and not to tell anybody about the incident otherwise he would defame her. She went to the police station where her statement Ex.PW9/A was recorded. She was medically examined in SRHC STATE VS GAURAV AGGARWAL//PS - ALIPUR//FIR NO.303/13//S.C. NO.57768/16. PAGE 3 OF 18 Hospital and after examination, she showed police the place of incident upon which rough site plan Ex.PW9/E was prepared. She next deposed that her statement Ex.PW8/B under Section 164 Cr.P.C., was recorded. Accused was arrested vide arrest and personal search memos Ex.PW4/B and Ex.PW4/C respectively on her identification.
PW12 Neeraj, brother of the victim, deposed that his father expired in 2005 and thereafter, he alongwith his mother and four sisters became tenant of Anandi where her relative Gaurav Aggarwal also used to reside. He came to know after two years that a quarrel had taken place between her elder sister/prosecutrix and accused as his sister had sent SMS to the accused in 2008. Accused informed him in October, 2012 on phone that victim used to make him phone calls continuously. When he himself saw the phone of accused, he found that his sister had called accused several times and only thereafter, he decided that he would marry his sister to a boy from his caste and started searching a suitable bridegroom. Later, he came to know that his sister used to talk to accused on phone and they used to talk to each other even in the house. Next deposition is that accused and his family members had borrowed Rs.2 lakhs from him for which they used to pay Rs.1500/ as interest. He told his sister on 23.01.2013 that he knew about her conversation with the accused. Upon such disclosure, there was a quarrel between accused and his sister. The victim had admitted before him that she had established physical relations with the accused and hence, he asked accused in May, 2013 to inform his parents that he had established physical relations with STATE VS GAURAV AGGARWAL//PS - ALIPUR//FIR NO.303/13//S.C. NO.57768/16. PAGE 4 OF 18 his sister. Hearing this, his mausis Anandi and Billo asked them to vacate the house which he did on next day. The accused and his family members refused to return Rs.2 lakhs but they had agreed to pay Rs.1/ lakh for the mistake committed by the accused. Later on, they agreed to return Rs.2/ lakhs also and accordingly the amount was paid to him.
6. PW3 lady Ct. Pooja deposed that when she reached in Triveni Colony, Bhakatawarpur on receipt of information on 04.07.2013, she met SI Soniya there and she alongwith IO took the prosecutrix to SRHC Hospital where she was medically examined but she refused for internal examination. Thereafter, she led police party to the house of the accused and pointed out the room where physical relations were established on the pretext of marriage.
PW1 Dr. Kuldeep had medically examined the prosecutrix initially when she was brought to SRHC Hospital on 04.07.2013 at 10:25 P.M. After examination, he referred her to Gynae Ward for further examination.
7. PW11 Dr. Shweta Jain identified the signatures and handwriting of Dr. Rupali as said doctor had left service of SRHC hospital and her present whereabouts were not known. She deposed that the prosecutrix was initially examined in casualty department and thereafter, she was referred to Gynae department for further examination where she was examined by Dr. Rupali and her writing is appearing on portion X to X on MLC Ex.PW11/A, bearing her signature at point A. Sealed exhibits were handed over to police.
STATE VS GAURAV AGGARWAL//PS - ALIPUR//FIR NO.303/13//S.C. NO.57768/16. PAGE 5 OF 18 PW5 HC Yag Dutt deposed that he registered the case FIR Ex.PW5/A on 04.07.2013 at about 2:20 P.M., when he was handed over tehrir by Ct. Prashant sent by W/SI Sonia. He made endorsement Ex.PW5/B on rukka regarding registration of FIR.
PW4 Ct. Prashant deposed that he alongwith SI Sonia went to Triveni Colony, Bhaktawarpur on 04.07.2013 after receipt of DD No.67B. The prosecutrix was present there and she was counselled. Accused was also present at the spot and he was identified by the victim. He next deposed that IO recorded statement of the prosecutrix, made rukka and handed over the same to him upon which he got the case FIR registered and returned to the IO and handed over copy of FIR and original rukka to the IO. The prosecutrix was taken to SRHC Hospital for medical examination by HC Pooja and IO. He took accused to SRHC Hospital where he was medically examined and after medical examination the doctor handed over his exhibits to the IO who seized the same vide seizure memo Ex.PW4/A. He next deposed that the accused was arrested and his personal search was conducted vide memos Ex.PW4/B and Ex.PW4/C respectively.
PW2 Dr. Awadhesh Kumar examined accused medically on 04.07.2013 at 10:25 P.M., prepared MLC Ex.PW2/A and opined that there was nothing to suggest that accused was not capable of doing sexual intercourse. He handed over accused's blood sample to police.
8. PW6 Ct. Santosh came to Rohini courts with IO on 05.07.2013 and got recorded statement of the prosecutrix under section STATE VS GAURAV AGGARWAL//PS - ALIPUR//FIR NO.303/13//S.C. NO.57768/16. PAGE 6 OF 18 164 Cr.P.C.
PW8 Sh. Dheeraj Mor, ld. MM recorded statement Ex.PW8/B of the prosecutrix under Section 164 Cr.P.C. on 05.07.2013.
PW10 Ms. Savita Antil is a primary teacher in Government Sarvodaya Kanya Vidyalaya, Bakhtawarpur where the prosecutrix was got admitted in 1st class on 20.04.2019 by one Sabita and girl's father Suresh Kumar by annexing her birth certificate Ex.PW10/B in which her date of birth is mentioned as 25.02.1994. They had filled up the application form Ex.PW10/A for admission consequent to which relevant entries were made in admission register Ex.PW10/C. PW7 HC Manoju Kumar was working as MHC(M) when SI Sonia deposited a sealed parcel and sample seal with him for which he made entry number 591 Ex.PW7/A in register no.19.
9. PW13 first SI Sonia deposed that when she alongwith Ct. Prashant reached to the spot i.e. H. No. 55/23, Triveni Colony, Bhakhatarpur on receipt of DD No.67B, the prosecutrix produced accused. She called an official from NGO namely Navshrishti who counselled the prosecutrix and her statement Ex.PW9/A was written and rukka Ex.PW13/A was prepared which was handed over to Ct. Prashant who came to the spot alongwith W/Ct. Pooja and handed over original rukka and computerized copy of FIR to her. Accused was arrested and his personal search was conducted vide memos Ex.PW4/B and Ex.PW4/C respectively and then Ct. Prashant got him medically examined in SRHC Hospital. She next deposed that she and Ct. Pooja STATE VS GAURAV AGGARWAL//PS - ALIPUR//FIR NO.303/13//S.C. NO.57768/16. PAGE 7 OF 18 got the prosecutrix medically examined. After examination, Ct. Prashant handed over blood sample of the accused in sealed condition with one sample seal which were taken into possession vide memo Ex.PW4/A. But the prosecutrix had refused for internal medical examination. After he medical examination they came to the spot and prepared rough site plan Ex.PW9/B on the pointing of the victim. She got recorded statement of the prosecutrix under section 164 Cr.P.C. on 05.07.2013.
10. PW14 SI Rita is the 2nd IO to whom further investigation was assigned on 16.09.2013. She came to know after going through the case file that investigation was complete in all respect and so, she prepared chargesheet and filed the same.
11. Under Section 313 Cr.P.C., the accused denied every incriminating material put to him.
12. Two witnesses have been examined in defence.
13. DW1 Smt. Anandi, mausi of the accused, deposed that the prosecutrix became her tenant in 2008. Her nephew Gaurav Aggarwal told her in January 2013 that the victim girl used to send him messages and letters and hence, she asked her to behave herself and not to send the messages and letters to accused. Simultaneously she asked her to vacate the premises but she refused demanded Rs.2/ lakhs threatening that if the amount was not paid, the accused would be implicated in a false case. She next deposed that due to fear, she arranged that amount from her relatives and gave to the prosecutrix. Despite receiving Rs.2/ lakhs, she again refused to vacate the house and further raised a demand of Rs.1/ STATE VS GAURAV AGGARWAL//PS - ALIPUR//FIR NO.303/13//S.C. NO.57768/16. PAGE 8 OF 18 lakh. She consulted her neighbour Mr. Ram Kishan who had recommended to give a room on rent to the prosecutrix. Ram Kishan advised her to pay the amount of Rs.1/ lakh also. She followed his advise and thereafter a compromise deed Ex.PW9/DB was executed on 30.06.2013 in the presence of the victim and her brother. After receipt of that amount, she had undertaken that she would not initiate any criminal proceedings against accused. She next deposed that compromise deed was signed by the victim as well as by her brother Neeraj. She vacated the house on 01.07.2013 but again came to her after two days and further raised a demand of Rs.3/ lakhs threatening that if the amount was not paid, accused would be implicated in a false case. She did not have that much amount and refused to pay any money. Due to nonpayment of that amount, a false case was registered against accused.
14. DW2 Ram Kishan deposed that Smt. Anandi was his neighbour and Gaurav Aggarwal was her nephew. It was he who had recommended Smt. Anandi to keep the prosecutrix as a tenant. The prosecutrix remained as tenant in her house till 2013. He next deposed that Smt. Anandi told him in the last week of June 2013 that the victim was not vacating the house despite getting Rs.2 lakhs. Smt. Anandi further told him that victim was still demanding Rs.1/ lakh for vacation of the premises. He advised her to pay the amount and thereafter a compromise deed Ex.PW9/DB was executed on 30.06.2013 which was signed by the parties after payment of Rs.1/ lakh to the victim. He next deposed that Smt. Anandi told her after some days that the despite STATE VS GAURAV AGGARWAL//PS - ALIPUR//FIR NO.303/13//S.C. NO.57768/16. PAGE 9 OF 18 execution of compromise deed, the prosecutrix was further demanding Rs.3/ lakhs, which she was unable to pay.
15. Defence counsel argued that there are several contradictions in the complaint, statement and evidence of the prosecutrix. She did not specify the date, month and year of the rape. She has made several improvements. He next argued that there was one sided love affair between accused and victim. She was infatuated by the accused and wanted him also to love her. But he refused and complained to his mausi Anandi who asked victim to mend her ways and to vacate her house. For vacation of the premises, she initially took Rs.2 lakhs but refused to vacate and demanded Rs.1 lakh more. That amount was also paid and the settlement agreement was signed by Anandi, victim and victim's brother PW12 Neeraj. She vacated house only after taking that amount but she again returned to Anandi and asked for Rs.3 lakhs more threatening that if the amount was not paid, she would lodge a case against the accused. Anandi did not have that much amount and hence, the case came into existence.
Ld. addl. PP admitted that there are some variations in complaint, statement and the evidence of the prosecutrix. But those are bound to occur with the passage of time. Such variations make prosecutrix a natural witness. He admitted that the prosecutrix has made several improvements in her examinationinchief. He argued that there was no one sided love affair. Rather, the accused had promised to marry prosecutrix but after establishing physical relations for 23 years, he STATE VS GAURAV AGGARWAL//PS - ALIPUR//FIR NO.303/13//S.C. NO.57768/16. PAGE 10 OF 18 refused to marry her. He next submitted that perusal of the settlement document Ex.PW9/DB shows that the amount of Rs.1 lakh was not paid for vacation of the house and rather, the payment was made due to dispute between accused and victim. He submitted that the real dispute was the promise of the accused to marry victim, physical relations between them and subsequent refusal by the accused to marry her. He argued that the prosecutrix was a minor girl on the date of the offence i.e. in August, 2009.
Ld. defence counsel replied that several dates of birth of the victim have come on the record. As per the birth certificate issued by Union Territory of Delhi, the victim was born on 25.02.1994. But as per school record, she was born on 27.09.1991. As per MLC, she was of 21 years as on the date of the MLC. Same age was told by her to the Magistrate. So, the prosecution has failed to prove that the victim was less than 18 years on the date of the offence.
16. PW10, primary teacher, Ms. Savita Antil, placed on record birth certificate of the victim as Ex.PW10/B, admission and withdrawal register as Ex.PW10/C. In Ex.PW10/B i.e. birth certificate of the victim issued by Union Territory of Delhi, it is mentioned that she was born on 27.02.1994. Same date is mentioned in admission and withdrawal register Ex.PW10/C. But, there are two other certificates also on the file which have been issued by the same school by which the document Ex.PW10/A and Ex.PW10/C have been issued. Those are also bearing the seal of the Principal of the school where the PW10 was employed. It STATE VS GAURAV AGGARWAL//PS - ALIPUR//FIR NO.303/13//S.C. NO.57768/16. PAGE 11 OF 18 is mentioned in those certificates that date of birth of prosecutrix was 27.09.1991.
When the prosecutrix was medically examined on 04.07.2013, she told her age to the doctor as 21 years. Her statement under section 164 Cr.P.C. was recorded on 05.07.2013 in which she told her age as 21 years.
17. As per Ex.PW10/A, Ex.PW10/B and Ex.PW10/C, the prosecutrix was of 15½ years on the date of the commission of the offence i.e. in August, 2009. As per MLC and statement under section 164 Cr.P.C, she was of 17 years as in August, 2009. But, as per unexhibited and unmarked documents but bearing the seal of the school where the victim was studying, she was of more than 18 years as on the date of commission of the offence i.e. August, 2009. As per those documents, she had passed 10th class in March, 2008 i.e. at the age of 16½ years. Generally, the child is admitted in first class at the age of 6 years. He passes 10th class in the age of 16 years. As per unexhibited and unmarked documents, the prosecutrix had passed 10th class at the age of 16½ years. So, those documents are more convincing than the remaining ones. As per those documents, she was of more than 18 years in August, 2009 i.e. when the offence is said to have been committed for the first time.
18. It is correct that contradictions make a witness natural one because with the passage of time, the witness forgets some facts and introduces new facts due to guesswork or exaggeration. But such STATE VS GAURAV AGGARWAL//PS - ALIPUR//FIR NO.303/13//S.C. NO.57768/16. PAGE 12 OF 18 contradictions are not to be big one. If the contradictions are huge, they go to the root of the case. In the case in hand, following are the big contradictions made by the prosecutrix:
(i) She deposed in crossexamination that she had initially met accused in 2007 as she had taken the house of his mausi on rent in 2007. She volunteered that it was her father who had taken the house on rent. It means that she wants to say that her father had taken the house of the accused on rent in 2007. But simultaneously, she deposed that her father had expired in 2005.
(ii) In complaint Ex.PW9/A she mentioned that the accused established physical relations with her in August, 2009. She stated in statement u/s. 164 Cr.P.C, that the sexual act took place in April, 2009. But she told the doctor, which the doctor wrote in the MLC Ex.PW11/A, that the incident of sexual assault had taken place in April, 2013.
(iii) Under section 164 Cr.P.C, the prosecutrix stated that accused indulged in physical relation with her till April, 2013. But in crossexamination she deposed that physical relations were established lastly in 2012.
STATE VS GAURAV AGGARWAL//PS - ALIPUR//FIR NO.303/13//S.C. NO.57768/16. PAGE 13 OF 18
(iv) In crossexamination, the prosecutrix deposed that she did not meet accused after 2012.
But perusal of her complaint and statement u/s.
164 Cr.P.C, shows that she had met him few days prior to the registration of the FIR in 2013 and also on the day when the FIR was registered on 04.07.2013.
(v) The prosecutrix deposed in cross examination that the accused told her first time in 2010 that he wanted to marry her, whereas it is mentioned in complaint that the accused had told her in August, 2009 that he wanted to marry her.
19. Perusal of the examinationinchief and crossexamination of the prosecutrix shows that she has failed to specify the date and month of the physical relations established by the accused with her. She is giving a vague period of 23 years.
In examinationinchief, she made big improvements by deposing that when she insisted for marriage, the accused put sindoor in her maang and took her to Tis Hazari for marriage and obtained her signatures on some papers and declared that after signing those documents, they were husband and wife. All these contents were totally missing in complaint and in statement u/s. 164 Cr.P.C. Moreover, the police did not recover any paper from the accused to the effect that he STATE VS GAURAV AGGARWAL//PS - ALIPUR//FIR NO.303/13//S.C. NO.57768/16. PAGE 14 OF 18 had married with the victim. It is pertinent to mention that it has been deposed by the prosecutrix that custody of those papers was with the accused.
20. The most vital document is the love letter Ex.PW9/DA written by victim to the accused. The letter proves that it was one sided love affair to which the accused never responded. It is written on a diary of April 2011. In crossexamination, the prosecutrix was asked when she wrote love letter to the accused. Initially, she deposed that she had written in 2009 but in the same breadth, she told that it was written it after registration of FIR. Following contents of letter are relevant: "...mai appse pyar karti hu. Eise bhi ye appki problem nahi hai. Mai aapse pyar karti hu. Ye meri problem hai. Aapki koi galti nahi hai. Na aapne mujhe jhuthi khushi di na aapne koi jhuthi umeed. Na aapne mujhe umeed me na koi shak me rakha. Gaurav pyar to bus pyar hota hai. Pyar me apni khushi se jyada dusra kitna pyara hai. Uski khushi ke baare me socha jata hai. Chahe wo pyar ek tarfa kyo na ho. Mai jaanti hu, mai achhi tarah jaanti hu ki ye pyar sirf, sirf ek tarfa hai. Na mai aapse koi umeed rakhti hu na koi umeed hai. Na mai aapse kuch chahti hu, na kuch chahiye. Na mai appse kuch maang rahi hu. Sorry kahu Gaurav maine aapse pyar kiya aur hamesha jhuth kaha ki mai nahi karti. Gaurav pyar to kisi na kisi se ho jata hai...."
Above contents of the letter show that even after registration STATE VS GAURAV AGGARWAL//PS - ALIPUR//FIR NO.303/13//S.C. NO.57768/16. PAGE 15 OF 18 of FIR in 2013, the victim had strong inclination towards the accused. She loved him to a great extent, but it was one sided. The prosecutrix admitted in crossexamination that the accused had not responded above love letter.
One sided love affair has been corroborated by victim's brother PW2 also by deposing in examinationinchief itself that he received a call from accused in October, 2012 and he told him that prosecutrix used to make continuous phone calls to him. After his complaint, he went through the mobile phone of the accused and found that his sister had really called him several times and hence, he decided to arrange marriage of his sister to any person of his caste. In cross examination, he admitted that accused Gaurav had shown his mobile phone to him regarding incoming phone calls of the victim. He further deposed that his sister used to weep and complain to him why Gaurav was not picking up her phone.
The prosecutrix admitted in crossexamination that she never told about incident to any of her family member or relative. She further admitted that she did not tell them about the incident even after the registration of the FIR. Had accused promised her to marry, she would have definitely told them about the same as they were the only persons in the world for her to initiate talks of her marriage with the accused. The probable reason of non disclosure of the incident to them is that after disclosure, they would have contacted the accused and his mausi Anandi and they would have revealed true facts to them that the STATE VS GAURAV AGGARWAL//PS - ALIPUR//FIR NO.303/13//S.C. NO.57768/16. PAGE 16 OF 18 accused was not in affair with the victim.
In view of above discussion, it is held that the victim used to love accused but the accused did not respond her advances.
21. DW1 and DW2 deposed about giving of Rs.two lakhs and Rs.one lakh to the victim for vacation of the rented house. But they are not supported by the document Ex.PW9/B executed between the parties. Perusal of the settlement deed shows that the amount of Rs.one lakh was not paid for vacation of the house because that fact is totally missing in that document. Rather, it is mentioned that there was some dispute between accused and victim and that she did not want any dispute with the accused in future and that is why she was getting Rs.one lakh as help from the accused. It has been signed by DW1 and DW2, victim and her brother Neeraj. That deed suggests that the amount was paid due to some dispute between the accused and victim but the nature of dispute has not been stated. As observed in earlier paragraph, the dispute between the accused and victim was that victim wanted to have love affair with him but he was not responding her calls and love letters. It was one sided affair.
22. In view of above discussion, it is held that the accused had not promised to marry prosecutrix. He had no affair with her. It was the victim who was deep in love with the accused but he was not responding her at all. So, there was no occasion for physical relations between them. As there was no promise to marry, there was no question to refuse to marry the victim.
STATE VS GAURAV AGGARWAL//PS - ALIPUR//FIR NO.303/13//S.C. NO.57768/16. PAGE 17 OF 18
23. In view of above discussion, it is held that the prosecution has failed to prove the case. Hence, the accused Gaurav Aggarwal is acquitted of the offence he was charged with.
24. The personal and surety bonds of the accused are hereby cancelled. Surety is hereby discharged. The endorsement made, if any, on any document of soundness of surety, be cancelled and the document be returned to surety.
File be consigned to record room.
UMED Digitally signed
by UMED
SINGH SINGH GREWAL
Date: 2019.10.09
GREWAL 11:38:09 +0530
Announced in the open Court (Umed Singh Grewal)
on this 3rd October, 2019 ASJ : Spl. FTC (North)
Rohini Courts : Delhi
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