Delhi District Court
State vs Vijit Aggarwal -:: Page 1 Of 70 ::- on 4 March, 2013
-:: 1 ::-
IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)-01,
WEST, TIS HAZARI COURTS, DELHI
Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
State
Versus
Mr.Vijit Aggarwal
Son of Mr. Vijay Aggarwal,
Resident of 33/27, Bhikham Singh Colony,
Gali No. 16, Vishwas Nagar, Shahdara, Delhi.
First Information Report Number : 73/08
Police Station Uttam Nagar,
Under section 376 of the Indian Penal Code.
Date of filing of the charge sheet before : 02.12.2008.
the Court of the Metropolitan Magistrate
Date of receipt of file after committal : 03.03.2009.
In the Sessions Court
Date of transfer of the file to this Court : 05.01.2013.
ASJ (SFTC)-01, West, THC, Delhi.
Arguments concluded on : 04.03.2013.
Date of judgment : 04.03.2013.
Appearances: Mr.Anil Kumar, Additional Public Prosecutor for the State.
Accused on bail with counsel, Mr.M.K.Sharma.
Ms.Sadhna Singh, counsel for the Delhi Commission for
Women.
Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar,
Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 1 of 70 ::-
-:: 2 ::-
JUDGMENT
"To call woman the weaker sex is a libel; it is man's injustice to woman. If by strength is meant brute strength, then, indeed, is woman less brute than man. If by strength is meant moral power, then woman is immeasurably man's superior. Has she not greater intuition, is she not more self-sacrificing, has she not greater powers of endurance, has she not greater courage? Without her, man could not be. If nonviolence is the law of our being, the future is with woman. Who can make a more effective appeal to the heart than woman?"----Mahatma Gandhi.
1. Rape is a dark reality in Indian society like in any other nation. This abnormal conduct is rooted in physical force as well as familiar and other power which the abuser uses to pressure his victim. Nor is abuse by known and unknown persons confined to a single political ideology or to one economic system. It transcends barriers of age, class, language, caste, community, sex and even family. The only commonality is power which triggers and feeds rape. Disbelief, denial and cover-up to "preserve the family reputation" are often then placed above the interests of the victim and her abuse. Rape is an abominable and ghastly and it worsens and becomes inhuman and barbaric when the victim is known to the culprit, as in the present case, who is allegedly subjected to unwanted physical contact by a perverted male adult on the pretext of promise to marry and whose trust is betrayed by a man in whom she reposes maximum trust so much so as to surrender herself before him into a physical relationship and then he walks out of her life.
2. "Courts are expected to show great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 2 of 70 ::-
-:: 3 ::-
sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the witnesses, which are not of a fatal nature to throw out allegations of rape. This is all the more important because of lately crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection and we must emphasize that the courts must deal with rape cases in particular with utmost sensitivity and appreciate the evidence in totality of the background of the entire case and not in isolation." The Supreme Court has made the above observations in the judgment reported as State of Andhra Pradesh v. Gangula Satya Murthy, JT 1996 (10) SC 550.
PROSECUTION CASE
3. Mr. Vijit Aggarwal, the accused, has been charge sheeted by Police Station Uttam Nagar, Delhi for the offence under section 376 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that between 25.01.2008 to 18.02.2008 from time to time at various places in and around Delhi, he had committed rape on the prosecutrix (name withheld to protect her identity) by promising to marry her and establishing physical relations.
CHARGE SHEET AND COMMITTAL
4. After completion of the investigation, the charge sheet was filed before the Court of the learned Metropolitan Magistrate on 02.12.2008 and after its committal, the case was assigned to the Court of the learned Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 3 of 70 ::-
-:: 4 ::-
predecessor vide order dated 03.03.2009 of the learned Sessions Judge, Delhi. Further, the case has been transferred and assigned to this Court i.e. Additional Sessions Judge (Special Fast Track Court) -01, West, Tis Hazari Courts, Delhi for 05.01.2013 vide order bearing number 20/372-512/F-3(4)/ASJ/01/2013, dated-04.01.2013 of the learned District and Sessions Judge, Delhi.
CHARGE
5. After hearing arguments, charge for offence under section 376 of the IPC was framed against the accused by the learned predecessor vide order dated 30.05.2009 to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
6. In order to prove its case, the prosecution has examined as many as 13 witnesses. The prosecutrix as PW1; HC Anil Kumar, MHCM, who brought the summoned record,as PW2, W/Ct. Rekha who had taken the prosecutrix to Sanjay Gandhi Memorial Hospital for medical examination as PW3; Dr. K.V. Mahalaxmi who had medically examined the prosecutrix, as PW4; ASI Pricilla Kujar, the Duty Officer who had recorded the formal FIR of the case, as PW5; SI Sanwar Mal, who is the Investigating Officer of the case, as PW6; Ms. Rama Das, mother of the accused, as PW7; HC Basant Kumar who had taken the accused to Sanjay Gandhi Memorial hospital for medical examination, as PW8; W/SI Renuka, who is the Investigating Officer of the present case, as PW9; SI Vijay Pal Singh, who had recorded the DD No. 13A pertaining to this case, as PW10; Mr. Anil Kumar, the learned Metropolitan Magistrate who recorded the statement of prosecutrix under Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 4 of 70 ::-
-:: 5 ::-
section 164 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.), as PW11; Dr. Uday Kumar Singh, who had medically examined the accused Vijit Aggarwal, as PW12; and Dr. Dhruw Sharma, who had given a FSL report, as PW13.
STATEMENT OF THE ACCUSED UNDER SECTION 313 OF THE CR.P.C.
7. In his statement under section 313 of the Cr.P.C., recorded on 15.02.2013, the accused has controverted and rebutted the entire evidence against him submitting that he is innocent and has been falsely implicated in this case. Although he was friends with the prosecutrix but he never had proposed marriage to her. He had physical relations with the prosecutrix with her free consent and without any assurance from his side that he shall marry with the prosecutrix and she was fully aware that she is having physical relations with him without any commitment of marriage. The accused Vijit Aggarwal has not preferred to lead evidence in his defence.
ARGUMENTS
8. I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.
9. The Additional Public Prosecutor for the State has requested for convicting the accused for having committed the offence under section 376 of the IPC submitting that the prosecution has been able to bring home the charge against the accused by examining its witnesses whose testimonies are Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 5 of 70 ::-
-:: 6 ::-
corroborative and reliable.
10. The counsel for the accused, on the other hand, has requested for his acquittal submitting that there is nothing incriminating against the accused on the record. The prosecutrix in her evidence has given different dates of the alleged rape. There is a delay in lodging of the FIR which otherwise is also without the details especially regarding going to Badkal. The date of alleged proposal to marry is not mentioned by the prosecutrix. The hotel record has not been produced by the prosecution. She has made improvements in her evidence before the Court.
CASE OF THE PROSECUTION, ALLEGATIONS AND DOCUMENTS
11. As per the allegations of the prosecution, accused Mr.Vijit Aggarwal had raped on the prosecutrix between 25.01.2008 to 18.02.2008 from time to time at various places in and around Delhi by promising to marry her and establishing physical relations with her without her free consent.
12. The prosecution story unfolds with the prosecutrix going to PS Shakurpur on 25.02.2008 and making her complaint which was recorded vide DD No.13A (Ex.PW10/A) by SI Vijay Pal Singh (PW10) on which the statement of the prosecutrix (Ex.PW1/A) was recorded. The original statement was sent through Ct.Parmatma for giving to SHO PS Uttam Nagar. On 25.02.2008, on the basis of Ex.PW1/A, the rukka (Ex.PW5/A) was written on which the FIR (Ex. PW5/A) was lodged. The prosecutrix was accompanied by her mother Ms.Rama Das (PW7). The investigation was Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 6 of 70 ::-
-:: 7 ::-
marked to SI Sanwar Mal. On 06.03.2008, the prosecutrix taken to the Deen Dayal Upadhayay Hospital by W Ct.Rekha (PW3) and was medically examined by Dr.K.V.Mahalaxmi (PW4) vide MLC (Ex.PW4/A). Two sealed parcels pertaining to the prosecutrix and one sample seal were seized by the Investigation Officer vide seizure memo (Ex.PW3/A). The accused Mr. Mr.Vijit Aggarwal made his disclosure statement (Ex.PW6/C) after he was formally arrested on 06.03.2008 vide arrest memo (Ex.PW6/A) and his personal search was conducted vide personal search memo (Ex.PW6/B). On 07.03.2008, accused Mr.Vijit Aggarwal taken by SI Sanwar Mal (PW6) and HC Basant Kumar (PW8) to Deen Dayal Upadhayay Hospital where he was medically examined by Dr.Uday Kumar Singh (PW12) vide MLC (Ex.PW12/A). Two sealed parcels pertaining to the accused and one sample seal were given by the doctor to SI Sanwar Mal which he seized vide seizure memo (Ex.PW6/D). On 06.03.2008 and 07.03.2008, the exhibits of the case were deposited by SI Sanwar Mal in the malkhana with HC Anil Kumar, Malkhana Moharrar (PW2) vide entries in register number 19 (Ex.PW2/A collectively). After obtaining permission from the DCP, Crime Branch, on 21.04.2008, SI Sanwar Mal deposited the exhibits at the FSL office vide RC number 6/21/2008 where they were examined. The release entry (Ex.PW2/B) and road certificate (Ex.PW2/C) were prepared. The statement of the prosecutrix under section 164 of the Cr.P.C. was recorded (Ex. PW1/D) by Mr.Anil Kumar, learned Metropolitan Magistrate (PW11). The receipt/acknowledgment of deposit (Ex.PW2/D) of the exhibits in the FSL was taken. Dr.Dhruw Sharma (PW13) examined the parcels vide the FSL report (Ex.PW13/A). The charge sheet was filed in the Court after the completion of investigation by SI Renuka (PW9).
Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 7 of 70 ::-
-:: 8 ::-
TESTIMONIES OF THE PROSECUTION WITNESSES
13. PW1, the prosecutrix, who has deposed in her examination-in- chief that she was working as Tele Caller in Fast Track in Uttam Nagar and the accused, Mr.Vijit Aggarwal, was a customer of aforesaid company and the accused was visiting there and she came in contact with the accused. They used to talk each other as friends and the accused had also proposed to marry her and introduced her to his parents and she gave her consent to the proposal of marrying him and of her introduction to his parents. The physical relations had been developed between the accused and prosecutrix and later the accused Mr.Vijit Aggarwal had refused to marry her. In the year 2008, when the accused had made physical relations with her and thereafter the prosecutrix had been called by accused Mr.Vijit Aggarwal at Pragati Maidan and then the accused took her at 10:00 a.m. to Badhkal Lake from Pragati Maidan in Indica Car. The accused booked a room at Badhkal Lake and she remained in the said room for half an hour and he made physical body relations with her. Firstly, the prosecutrix had refused to make physical relations and when the accused had proposed her to marry him and to make physical relations with her, then the prosecutrix had permitted the accused to have physical relations with her. She had made physical relations with the accused three-four times. On 25.02.2008, her complaint (Ex.PW1/B) had been recorded in Police Station Uttam Nagar and her medical examination was also conducted in Deen Dayal Upadhaya Hospital. Her statement under section 164 Cr.P.C. (Ex.PW1/D) was recorded by the Magistrate. Her statement was recorded by the police of Police Station Shakur Pur on 25.02.2008, then two statements were also recorded by the police of Police Station Uttam Nagar on Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 8 of 70 ::-
-:: 9 ::-
06.03.2008. She has admitted that she had stated in her statement to the police of Police Station Shakur Pur that accused Mr.Vijit Kumar proposed her number of times for marriage and she had requested him for first consent of her parents. She has admitted that she had stated to the police in the statement, that accused told that he had already talked to her parents. On 17.02.2008, he came to her residence and took her to meet his parents. Then she went with him in his car No.DL 3C BB 0524, Indica, and he took her in the area of Bhajan Pura, Seelampur and Anand Vihar and he was loving her in the vehicle. She had stated in her statement to the police that on 18.02.2008 at about 6.30 am, he asked her to go to his office and then apprised her on telephone in the evening as to where she shall come. She has admitted that she had stated in her statement to the police that he dropped her at Pragati Maidan Metro Station. She has admitted to be correct that she had also stated to the police that then she traced him a lot and also tried to contact him on telephone but he did not see her. She has admitted that he has teased her and also cheated her by proposing fraudulently to marry her. She had stated to the police in her statement that on 06.03.2008, she came along with her mother at Police Station Uttam Nagar, where Mr.Vijit Kumar was already present and she had also identified him there. She has admitted that she had stated in her statement and also given in writing that the accused had made physical relations with her, number of times, without her consent, on the pretext of marrying her. She has admitted that she had stated to the police in her statement under section 161 Cr.P.C., recorded on 06.03.2008, that it was 25.01.2008, when accused took her to Badhkal Lake and booked a room there. By "physical relation", she means, physical relation which exists between a husband and a wife. The original of her school certificate (Mark B) is lying at Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 9 of 70 ::-
-:: 10 ::-
her residence. Her date of birth is 13.08.1986 as per certificate (Mark B). In reply to Court question she deposed that it was last occasion on 25.01.2008, when there was physical relations with her and the other two or three occasions were prior to January, 2008. Such two or three occasions were in the month of November, 2007 and December, 2007. In November and December, 2007, the physical relations were made at a room in Badhkal Lake, Haryana. She had not stated incident of November and December, 2007 in her statements to the police, since she was not asked or inquired by the police.
14. PW2, HC Anil Kumar, is the MHCM. He has proved the relevant entries in register number 19 and 21 (Ex.PW2/A) (colly) pertaining to the FIR No. 73/2008, PS Uttam Nagar regarding the deposit of the samples pertaining to the prosecutrix and the accused and the sample seals and sending of the same to the FSL.
15. PW3, W/Ct. Rekha has deposed that on 06.03.2008, she along with Investigating Officer, mother of the prosecutrix and prosecutrix went to Deen Dayal Upadhyay Hospital, Delhi for medical examination of the prosecutrix Sunanina and there she was medically examined and after medical examination, doctor had given her the seal parcel along with sample seal which were handed over to the investigating officer, the same were taken into possession vide memo Ex.PW3/A. Her statement was recorded by the Investigating Officer.
16. PW4, Dr. K.V. Mahalaxmi, had medically examined the prosecutrix Sunaina and has proved the MLC of the prosecutrix Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 10 of 70 ::-
-:: 11 ::-
(Ex.PW4/A).
17. PW5, ASI Pricilla Kujar, duty officer who had recorded the DD No.19 and 21 (Ex.PW2/A) (colly) regarding the report of the prosecutrix on the basis of which the FIR (Ex.PW5/A) was lodged.
18. PW6, SI Sanwar Mal, is the Investigating officer of the case. He has deposed that on 25.02.2008, the duty officer of Police Station Uttam Nagar gave him copy of FIR under Section 354 IPC and investigation of the present case was assigned to him and he searched the accused Mr.Vijit Aggarwal but he could not be traced. On 06.03.2008, the accused came at Police Station. Thereafter, he was interrogating the accused and in the meanwhile, the prosecutrix and her mother also came and identified the accused Mr.Vijit Aggarwal who had committed rape on the prosecutrix 2/3 times. Thereafter, the prosecutrix was sent to Deen Dayal Upadhaya Hospital with Lady Ct.Rekha for her medical examination and one sealed parcel and one sample seal had handed over to him after the medical examination of prosecutrix was done, which he had taken in his possession vide seizure memo (Ex.PW3/A). Ct. Rekha had also produced the MLC of prosecutrix. Statement under section 161 Cr.P.C. of the prosecutrix had been recorded by him. Thereafter, the accused has been arrested by him and prepared his arrest memo and personal search memo (Ex.PW6/A and B respectively). Disclosure statement of accused (Ex.PW6/C) had been recorded by him. O7.03.2008, the accused Vijit Aggarwal has been taken to Deen Dayal Upadhaya Hospital by him along with Ct. Basant where the accused was got medical examined. Thereafter, one sealed parcel and one sample seal had been produced by the Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 11 of 70 ::-
-:: 12 ::-
doctor and the same had taken into his possession vide seizure memo (Ex.PW6/D). During the course of investigation, he had obtained photocopy of date of birth certificate (Ex.PW1/B), issued by CBSE, New Delhi. Thereafter, on 07.03.2008, the accused and prosecutrix had appeared before the concerned court and the accused Mr.Vijit Aggarwal was sent to judicial custody. The statement of prosecutrix under section 164 Cr.P.C. had been recorded by the learned Metropolitan Magistrate and he obtained copy of the same. On the same day, he deposited the exhibits of present case in malkhana and then deposited in FSL vide RC No. 6/21/2008 after taking the same from MHC(M) HC Anil Kumar. He also recorded the statement of witnesses.
19. PW7, Ms. Rama Das, mother of the prosecutrix has deposed that she along with her daughter Sunaina went to Police Station Uttam Nagar where accused Mr.Vijit Aggarwal was present in the Police Station. She and her daughter had identified the accused who had committed rape with her daughter. Thereafter, she along with her daughter and police officials went to Deen Dayal Upadhaya Hospital where medical examination of the prosecutrix was conducted.
20. PW8, HC Basant Kumar, who had taken the accused Mr.Vijit Aggarwal along with ASI Sawar Mal on 07.03.2008 to Deen Dayal Upadhaya Hospital for medical examination and the accused was medically examined there. Doctor gave sealed parcel to the IO and IO had taken the same into his possession through memo Ex.PW6/D. Thereafter, they came back to the Police Station Uttam Nagar and then the accused was taken to the court. Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 12 of 70 ::-
-:: 13 ::-
Thereafter, statement of the prosecutrix were recorded by learned Metropolitan Magistrate and then, they came back to PS.
21. PW9, W/ASI Renuka who is the second Investigation Officer of this case. She has deposed that on 30.05.2008, the investigation of the this case was assigned to her and she made inquiries from the prosecutrix during the course of investigation. The investigation was already completed but the result was not received from FSL and challan was prepared.
22. PW10, SI Vijay Pal Singh, who had recorded the DD No. 13A (Ex.PW10/A) in PS Shakur Pur and after recording DD No. 13A, he came to know that the case falls within the jurisdiction of Uttam Nagar. He gave custody of prosecutrix and copy of DD No. 13A to Lady Ct. Laxmi along with Ct. Parmatma were sent to Police Station Uttam Nagar After inquiring from prosecutrix, he had recorded the statement of prosecutrix (Ex.PW1/A). He had also recorded the statement of Ct. Parmatma and directed him to give the same to SHO of Police Station Uttam Nagar.
23. PW11, Mr. Anil Kumar, the learned Metropolitan Magistrate, who had recorded the statement of prosecutrix under section 164 Cr.P.C. (Ex. PW1/D).
24. PW12, Dr. Uday Kumar Singh, Medical Officer, had medically examined the accused Mr.Vijit Aggarwal and has proved the MLC of the accused (Ex.PW12/A).
Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 13 of 70 ::-
-:: 14 ::-
25. PW13, Dr. Dhruw Sharma, Senior Scientific Officer (Biology), FSL, who had examined the prosecutrix and accused Vijit Aggarwal and had given a detailed report (Ex.PW13/A).
26. The accused and his counsel have preferred not to cross examine PWs 3, 5, 6, 7, 11, 12 and 13. Their evidence remains uncontroverted and unrebutted and can be presumed to have been admitted as correct by the accused.
DISCUSSION, ANALYSIS AND OBSERVATIONS
27. The question is how to test the veracity of the prosecution story especially when it has some variations in the evidence. Mere variance of the prosecution story with the evidence, in all cases, should not lead to the conclusion inevitably to reject the prosecution story. Efforts should be made to find the truth, this is the very object for which the courts are created. To search it out, the Courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the Court within permissible limit to find out the truth. It means, on the other hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot-free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be created to the accused. For this, one has to comprehend the totality of facts and the Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 14 of 70 ::-
-:: 15 ::-
circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of the witnesses, of course after excluding that part of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of the prosecution or a defence case could be concretized. It would depend upon the evidence of each case including the manner of deposition and his demeans, clarity, corroboration of witnesses and overall, the conscience of a Judge evoked by the evidence on record. So the Courts have to proceed further and make genuine efforts within judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt.
28. Under this sphere, I now proceed to test the submissions of both the sides.
IDENTITY OF THE ACCUSED
29. There is no dispute regarding the identity of the accused Mr.Vijit Aggarwal who has been identified by the prosecutrix. It is also not in dispute that they were known to each other prior to the lodging of the FIR. He is also named in the FIR.
AGE OF THE PROSECUTRIX
30. There is no dispute that the prosecutrix was above 18 years of age at the time of the incident. In her complaints Ex.PW1/A and Ex.PW1/B, she has stated her age as 19 years.
Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 15 of 70 ::-
-:: 16 ::-
VIRILITY OF THE ACCUSED
31. The accused has been medically examined by Dr.Uday Kumar Singh (PW12) vide MLC (Ex.PW12/B) wherein it is opined that "There is nothing to suggest that the person is not able to perform sexual act)"
32. This report indicates that the accused is virile and is capable of performing sexual act and is capable of committing the act of rape.
MLC OF THE PROSECUTRIX AND FSL REPORTS
33. The MLC of the prosecutrix (Ex.PW4/A) shows that the absence of hymen and mentions the history of contact/ rape 15 days back and is continuing since then.
34. The FSL report (Ex.PW13/A) shows that human semen was detected on the underwear and semen sample of the accused. However, the semen was not detected on the underwear and the two slides of the prosecutrix.
35. It has been argued that no case of rape is established against the accused since the semen was not detected on the underwear and the two slides of the prosecutrix. However, this contention is not tenable as it cannot be ignored that the prosecutrix was medically examined after 15 days of the contact/rape and all evidence may have been washed out of the body of the prosecutrix while easing herself.
36. Otherwise also, medical and forensic evidence is only for the Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 16 of 70 ::-
-:: 17 ::-
purpose of corroboration and solely on the ground of lack of such evidence, the accused cannot be acquitted. It is evidence of the prosecutrix which is of utmost importance and the judgment is mainly based on her evidence.
DEFENCE OF THE ACCUSED
37. In his statement under section 313 of the Cr.P.C., the accused has given mainly three word answers by saying "It is wrong" to most of the questions or feigning ignorance by saying "I do not know". He has stated that he is innocent and has been falsely implicated in this case by the prosecutrix. He has stated that although she was friends with the prosecutrix but he had never proposed marriage to her. They had physical relations with her free consent and without any assurance from his side that he shall marry her. She was fully aware that she is having physical relations with him without any commitment of marriage.
38. The accused has preferred not to lead any evidence in his defence in support of his stand. I also find that the accused has not even given a cursory suggestion to the prosecutrix to the same effect and has put a different story in his own statement. His version in the suggestions given to the prosecutrix is that there were no physical relations between the (denied by her) while in his statement under section 313 of the Cr.P.C., he has admitted the physical relations.
39. However, the accused has neither led any evidence in his defence to substantiate his claim nor even put any such suggestions to the prosecutrix to prove his defence and these facts indicate that he is putting up a false Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 17 of 70 ::-
-:: 18 ::-
defence. The accused has only attempted unsuccessfully to mislead the Court.
40. The accused has also failed to show any motive or malafide intention on the part of the prosecutrix for implicating him in a false case. The accused failed to assign any malafide motive to PW1 that she would get him falsely implicated in a rape case. The defence of the accused does not appear to be probable.
41. Therefore, I am of the considered opinion that there is no veracity in the defence of the accused.
MENS REA / MOTIVE
42. Regarding the motive of crime, it may be observed that in a case based on circumstantial evidence, the existence of motive assumed significance though the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of circumstantial evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence.
43. The motive has to be gathered from the surrounding circumstances and such evidence should from one of the links to the chain of circumstantial evidence. The proof of motive would only strengthen the prosecution case and fortify the court in its ultimate conclusion but in the absence of any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be convicted. Motives of men are often subjective, Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 18 of 70 ::-
-:: 19 ::-
submerged and unnameable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive.
44. In the present case there is sufficient evidence on record to show that the accused did have a motive to commit the offence. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, there can be no sweeping generalization. Each case must be judged on its own facts. These observations are only made to combat what is so often put forward in cases as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.
45. In the present case, a story has been projected by the accused that the prosecutrix had physical relations with him without any proposal of marriage or commitment to marry. This version appears to be untrue as there Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 19 of 70 ::-
-:: 20 ::-
is no reason why she would do so. No girl would have physical relations with a man without any proposal of marriage or commitment to marry or assurance of marriage. Unless there is some kind of incentive like marriage, no girl would enter into proximity with a man that too of such private nature. The accused has admitted being friends with the prosecutrix and also having physical relations with him. It is also not the case that the prosecutrix is a girl of easy virtue or characterless or known to have promiscuous. There is no such suggestion given to the prosecutrix and impliedly it indicates that the prosecutrix is a self respecting girl. The fact the accused had physical relations with the prosecutrix, by itself, indicates his mala fide intention as he must have given some allurement of marriage to her and only then she would have established physical relations with him.
46. The prosecutrix has also deposed in her evidence that she had refused to make physical relations and when the accused had proposed her to marry him and to make physical relations with her, then the prosecutrix had permitted the accused to have physical relations with her.
47. All these facts in totality indicate that there was criminal intention and mens rea on the part of the accused.
DELAY IN FIR
48. The contention of the advocate for the accused that there was a delay in lodging of the FIR which is fatal is now being taken into consideration.
Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 20 of 70 ::-
-:: 21 ::-
49. As per the complaint, Ex.PW1/A dated 25.02.2008 that the accused had proposed marriage to her and on 17.02.2008, he took her with him on the pretext of making her meet his family. He had physical relations with her and on 18.02.2008, he left her at Pragati Maidan Metro Station. Then he could not be traced. In Ex.PW1/B, she has stated that on 17.02.2008, the accused had taken her and had taken her to Badkal Lake, Faridabad, Haryana and had raped her i.e. had physical relations with her on promise to marry and left her on 13.02.2008 (18.02.2008).
50. It is claimed by the accused that as the FIR has been lodged on 25.02.2008 at 3.05 pm and the delay in lodging of the FIR has been not explained by the prosecution.
51. The Additional Public Prosecutor on the other hand submitted that there is no delay in the lodging of the FIR as the criminal action was swung into motion as soon as possible since the prosecutrix was searching for the accused.
52. The delay in lodging the report raises a considerable doubt regarding the veracity of the evidence of the prosecution and points towards the infirmity in the evidence and renders it unsafe to base any conviction. Delay in lodging of the FIR quite often results in embellishment which is a creature of after thought. It is therefore that the delay in lodging the FIR be satisfactorily explained. The purpose and object of insisting upon prompt lodging of the FIR to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 21 of 70 ::-
-:: 22 ::-
committed, the names of actual culprits and the part played by them as well the names of eye witnesses present at the scene of occurrence.
53. In the case reported as State of Rajasthan v. Om Prakash, (2002) 5 SCC 745, the Hon'ble Supreme Court has held that in case where delay is explained by the prosecution in registering the case, the same could be condoned moreover when the evidence of the victim is reliable and trustworthy. Similar view was taken in Tulshidas Kanolkar v. The State of Goa, (2003) 8 SCC 590, wherein it was held by the Supreme Court as follows:
"The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstance s for the accused when accusation of rape are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered , the Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactory explain the delay and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay , it is a relevant factor. On the other hand satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen to her. That being so the mere delay in lodging of first information report does not in any way render prosecution version brittle.
54. Before coming to the merits of the present case, an argument has been raised by the counsel for the accused regarding the delay in registration of the FIR. In this regard I may observe that it is not that every delay in Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 22 of 70 ::-
-:: 23 ::-
registration of the FIR would be fatal to the prosecution. Once the delay has been sufficiently explained, the prosecution case would not suffer. However, it is necessary for the Courts to exercise due caution particularly in the cases involving sexual offences because the only evidence in such cases is the version put forwarded by the prosecutrix.
55. The Hon'ble Apex Court in the judgment reported as State of Rajasthan v. Om Prakash, (2002) 5 SCC 745, has held that in case where delay is explained by the prosecution in registering the case, the same could be condoned moreover when the evidence of the victim is reliable and trustworthy.
56. In the judgment reported as Devanand v. State (NCT of Delhi), 2003 Crl.L.J. 242, the Hon'ble High Court of Delhi has observed as follows:
"The above said statement clearly show that at the earliest opportunity the prosecutrix had not made any complaint to her mother in this regard. Reading of the examination-inchief reveals that first time she was raped as per her own version after about 30-36 days of coming of the appellant but in any case she admits that she has been raped many a times and she only complained to her mother few days after he had left. The appellant stayed in the house of the prosecutrix for more than year..."
57. Further, the Hon'ble High Court of Rajasthan in the judgment reported as Babu Lal and Anr v. State of Rajasthan, Cri.L.J. 2282, has held as under:
"No doubt delay in lodging the FIR in sexual assault cannot normally damage the version of the prosecutrix as held the Hon'ble Supreme Court in various judgements but husband of the prosecutrix is there Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 23 of 70 ::-
-:: 24 ::-
and report is lodged after one and half months, such type of delay would certainly be regarded as fatal to the prosecution case"
58. The Hon'ble High Court of Madhya Pradesh in the judgment reported as Banti alias Balvinder Singh v. State of Madya Pradesh, 1992 Cr.L.J. 715, has held as under:
"in conclusion, having regard to the conduct of the prosecutrix in not making any kind of complaint about the alleged incident to anybody for five days coupled with late recording of report by her after five days with false explanation for the delay, in the context also of the Lax Morals of the Prosecutrix , it is very unsafe to pin faith on her mere word that sexual intercourse was committed with her by five accused persons or any of them . It is also difficult to believe her version regarding the alleged abduction in jeep. In the circumstances it must be held that the prosecutrix story was not satisfactorily established"
59. I find on perusal of the record that indeed the criminal action was swung into motion after about a week. The prosecutrix has deposed in her evidence that she tried to trace the accused a lot and also tried to contact him on phone but he did not see her. It is clear that before approaching the police, she had made efforts to trace the accused and contact him on phone but he was not making himself available. It was only after that, she went to PS Shakurpur to lodge the complaint and was referred to PS Uttam Nagar. The explanation which appears to be satisfactory has been furnished by the prosecutrix. She may not have anticipated on 17.02.2008 or 18.02.2008 that the accused would disappear from her life after proposing marriage to her and establishing physical relations with her. She waited and then eventually went to the police.
60. Therefore, upon a complete and careful reading of the evidence of the prosecutrix, it is revealed that the prosecutrix remained under the Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 24 of 70 ::-
-:: 25 ::-
impression that the accused is going to fulfill his promise of marrying her. Infact, he had no such intention and has only exploited the prosecutix. Only after realizing the same after trying unsuccessfully to trace and contact him on phone, she went to the police.
61. Therefore, it cannot be said that the FIR was lodged after a delay which is fatal to the prosecution story. The delay had been satisfactorily explained.
62. Section 375 of the IPC enumerates six circumstances wherein the sexual intercourse committed amounts to rape which read as under:
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.
Sixthly - With or without her consent, when she is under sixteen years of age.
STATEMENT AND EVIDENCE OF THE PROSECUTRIX
63. It is necessary to discuss and analyse the testimony of the most material witness i.e. PW1, the prosecutrix.
Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 25 of 70 ::-
-:: 26 ::-
64. In the Court, during trial, the prosecutrix, as PW1, in her evidence, has deposed that she was working as Tele Caller in Fast Track in Uttam Nagar and the accused, Mr.Vijit Aggarwal, was a customer of aforesaid company and the accused was visiting there and she came in contact with the accused. They used to talk each other as friends and the accused had also proposed to marry her and introduced her to his parents and she gave her consent to the proposal of marrying him and of her introduction to his parents. The physical relations had been developed between the accused and prosecutrix and later the accused Mr.Vijit Aggarwal had refused to marry her. In the year 2008, when the accused had made physical relations with her and thereafter the prosecutrix had been called by accused Mr.Vijit Aggarwal at Pragati Maidan and then the accused took her at 10:00 a.m. to Badhkal Lake from Pragati Maidan in Indica Car. The accused booked a room at Badhkal Lake and she remained in the said room for half an hour and he made physical body relations with her. Firstly, the prosecutrix had refused to make physical relations and when the accused had proposed her to marry him and to make physical relations with her, then the prosecutrix had permitted the accused to have physical relations with her. She had made physical relations with the accused three-four times. On 25.02.2008, her complaint (Ex.PW1/B) had been recorded in Police Station Uttam Nagar and her medical examination was also conducted in Deen Dayal Upadhaya Hospital. Her statement under section 164 Cr.P.C. (Ex.PW1/D) was recorded by the Magistrate.
65. The prosecutrix has also cross-examined by Additional Public Prosecutor for State. She has admitted to be correct that her statement was Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 26 of 70 ::-
-:: 27 ::-
recorded by the police of Police Station Shakur Pur on 25.02.2008, then two statements were also recorded by the police of Police Station Uttam Nagar on 06.03.2008. She has admitted that she had stated in her statement to the police of Police Station Shakur Pur that accused Mr.Vijit Kumar proposed her number of times for marriage and she had requested him for first consent of her parents. She has admitted that she had stated to the police in the statement, that accused told that he had already talked to her parents. On 17.02.2008, he came to her residence and took her to meet his parents. Then she went with him in his car No.DL 3C BB 0524, Indica, and he took her in the area of Bhajan Pura, Seelampur and Anand Vihar and he was loving her in the vehicle. She had stated in her statement to the police that on 18.02.2008 at about 6.30 am, he asked her to go to his office and then apprised her on telephone in the evening as to where she shall come. She has admitted that she had stated in her statement to the police that he dropped her at Pragati Maidan Metro Station. She has admitted to be correct that she had also stated to the police that then she traced him a lot and also tried to contact him on telephone but he did not see her. She has admitted that he has teased her and also cheated her by proposing fraudulently to marry her. She had stated to the police in her statement that on 06.03.2008, she came along with her mother at Police Station Uttam Nagar, where Mr.Vijit Kumar was already present and she had also identified him there. She has admitted that she had stated in her statement and also given in writing that the accused had made physical relations with her, number of times, without her consent, on the pretext of marrying her. She has admitted that she had stated to the police in her statement under section 161 Cr.P.C., recorded on 06.03.2008, that it was 25.01.2008, when accused took her to Badhkal Lake and booked a room there. Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 27 of 70 ::-
-:: 28 ::-
By "physical relation", she means, physical relation which exists between a husband and a wife. The original of her school certificate (Mark B) is lying at her residence. Her date of birth is 13.08.1986 as per certificate (Mark B).
66. In reply to Court question she deposed that it was last occasion on 25.01.2008, when there was physical relations with her and the other two or three occasions were prior to January, 2008. Such two or three occasions were in the month of November, 2007 and December, 2007. In November and December, 2007, the physical relations were made at a room in Badhkal Lake, Haryana. She had not stated incident of November and December, 2007 in her statements to the police, since she was not asked or inquired by the police.
67. In her cross-examination on behalf of the accused, she has deposed that she has studied upto Intermediate. She knew Hindi very well but she understood English a little bit. Her father used to run one tea stall (on Thela) at Janakpuri. Her father used to earn an amount of Rs.400/- to Rs.500/- per day. She has one brother and two sisters. Brother is eldest one, one sister is elder than her and another is younger to her. Her elder sister married in the year 2001. In the year 2008, it was not a jhuggi colony where they used to reside. Their house was situated in the area of 25 sq. yards. She knew Mr.Vijit. She never visited the house of the accused. Accused told her that he used to reside in trans Yamuna but he did not tell her the name of the colony. He met her first time in Pargati Maidan. She was doing private job in Uttam Nagar. She did not remember the date, month and year when she met the accused in Pragati Maidan. It was before Diwali in the year 2008. The accused came for the first time at Pragati Maidan in a Wagon-R. The car was not Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 28 of 70 ::-
-:: 29 ::-
owned by him. When he used to visit her as customer in her office, she came to know that he is the owner of a two wheeler but she did not know that in whose name that four wheeler was. The accused used to come to meet her on motorcycle and sometimes in car. He brought the car somewhere in January or February, 2009. It may be in 2008 also. She has admitted to be correct that she used to roam around with the accused in his car for about 1 and 1 ½ hours. The accused never came to her house. She had a mobile phone in the year 2008/09. The number of her mobile was 031200, but she did not remember the next digits. However, it was a Reliance number. It was in the name of her mother Ms. Rama Devi. At the time of purchase of mobile, she accompanied her mother and they produced the documents at the time of purchasing the mobile. The shop from where she got released the said Reliance is situated in their colony. Perhaps the name of the shop was Mona. She remembered the complete number of her mobile was 9312008839. She has admitted to be correct that she and accused used to talk on phone through the said number. She did not remember the date and month when she first visited the PS Shakur Pur but probably it was in the year 2009. The police recorded her statement in Hindi. The police on the same day, when her statement was recorded at PS Shakur Pur, took her to PS Uttam Nagar. They reached the PS Uttam Nagar in the afternoon. The said statement was handed over at PS Uttam nagar and she was also inquired by the police officials about the said statement. Her statement was also recorded by the police on the day when she was medically examined. Police officials orally inquired from her and then recorded her statement. Certain facts remained to be stated in her first statement and she stated those remained facts in her second statement. Accused Mr.Vijit was called at the PS but not in her presence. When accused Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 29 of 70 ::-
-:: 30 ::-
Vijit was called at the PS, she was also called to identify the accused at the PS. She along with her parents went to PS Uttam Nagar. Police officials did not record statement of her parents. Her mother went to hospital along with her at the time of medical examination. One lady police official and one male police official accompanied her to the hospital but she did not recollect their names. She did not recollect the date when police took her for medical examination but it was however in the month of February, 2008. She was empty handed at that time. Even her mother was empty handed. The doctor had made her signed on some documents after her medical examination. No police official obtained her signatures in any documents in the hospital. She was taken to the hospital at around 8-9.00 a.m. in the morning. She along with her mother went to PS of their own. The accused was called in the PS and was detained there by the police and she was called in the PS to identify the accused. She did not remember the date but it was in the end of February, 2008. It was the day of Shivratri. Accused was apprehended by the police on the previous night when they visited PS. She went to the PS, first on the day of arrest of accused and second time on the second time in the morning. Police recorded her statement twice. Police did not obtain her signatures on any document. The number of mobile which had already stated in her earlier deposition in the Court used by her and remained in her custody only. She had friendship with the accused for 5-6 months prior to the incident. Accused never visited her house nor she visited his house. She had knowledge that the accused used to live in Trans-Yamuna area. Her parents were not aware regarding her friendship with the accused. She never remained outside her house in the night hours. She used to meet Mr.Vijit for about 1 -1 ½ hour. She had met Vijit for 5-10 times during the aforesaid period. She first met Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 30 of 70 ::-
-:: 31 ::-
accused Vijit at Pragati Maidan, Metro Station on his call. Prior to that, they used to talk to each other on phone. They used to talk in the gap of 2-4 days on phone. She has admitted that she had talked with Vijit on telephone on more than 100 times during the aforesaid period. After meeting at Pragati Maidan, he accompanied her to Delhi University. She was doing B.A from D.U through Correspondence. She has qualified 1st and IInd year of Graduation from D.U. She also has a mark sheet mentioning her roll number. She can produce the same, if given time. Police did not call Vijit after recording her first statement in the PS. There was a gap of about 15 days in her first statement and second statement given to the police. She had read over her first statement recorded by the police, which was in Hindi. She understands Hindi language very well. She can write and read Hindi language easily. Her first statement was recorded by the police official of Shakarpur and thereafter she was accompanied by the official of PS Sharkar pur to PS Uttam Nagar as she was residing in the area of Uttam Nagar. She had put her signatures on her first statement after reading the same. Her mother accompanied her to the PS when her second statement was recorded by the police. Her father is a tea vendor. He was not earning much. They are six family members. They are three sisters. She is not aware whether or not the accused is rich. The accused generally used to meet her in his car and sometimes on his bike. She had called her parents to the PS Uttam Nagar where she had gone alone for lodging the complaint against accused. Her mother did not come to PS Shakar pur and she had come to PS Uttam Nagar. She had made statement in PS Shakar pur from where the matter was referred to PS Uttam Nagar. She had visited UPSC Hall with accused Vijit 2-3 times in the month of November- December, 2007. She stayed at UPSC Hall with the accused for about 1-1 half Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 31 of 70 ::-
-:: 32 ::-
hours. The accused has office in UPSC building and she used to remain sitting in his car in the UPSC parking. She has never visited his office. During the 5 months of her friendship with the accused, she was working in Fast Track company in Om Vihar, Uttam Nagar, but she did not remember the exact address. She did not know whether this company still exists. The salary used to be paid in cash and the names of the employees including herself were mentioned in the employees register. She can not produce any document regarding her employment in the aforesaid company. She can not tell the phone number of the aforesaid company. She has admitted that whenever a person visits a hotel for stay purpose an entry is made in the register. Perhaps the entry was made at Badkal lake regarding their visit. They visited Badkal Lake once. They had visited Badkal Lake in the first week of January 2008. She has admitted that she along with accused used to roam about in Delhi for about 5 months since they came to know each other. Accused had talked with her regarding marriage about 20/22.02.2008 for the first time. She also had talked with the accused regarding their marriage after 20/22.02.2008. She was not threatened by the police official or anyone else when she made her first statement before the PS before Shakur Pur. She had visited PS Shakur Pur on 25.02.2008. The accused did not make any proposal to her before 20/22.02.2008. She did not remember if she had stated to the police at PS Shakur Pur that accused did (Galat Kaam). By Galat Kaam, she means that the accused had touched her body, kissed her and established physical relationship i.e. rape. Her consent was forced as he had told her that he would marry her but he did not marry her. She do not remember the dates but it was in the months of January-February in the year 2008, when the accused had physical relationship with her and raped her but it was 2-3 times. She did not Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 32 of 70 ::-
-:: 33 ::-
ask police official of PS Shakur Pur to get her medically examined. After about 12 days when she had gone to PS Uttam Nagar and was asked by the police whether anything wrong had happened to her on which she had told about the incident and then on their directions, she had got myself medically examined. She had narrated the incident as it happened in PS Shakurpur as well as PS Uttam Nagar. She had read her statement before signing it. She has signed on the FIR (Ex.PW1/A). She did not telephone the accused between 25.02.2008 and 06.03.2008. She had talked to him on phone between 20.02.2008 and 25.02.2008 regarding the marriage between them. She may have told the police in her statement dated 25.02.2008 that she had met the accused in Pragati Maidan from where they had gone to Badkal Lake where the accused had booked a room and had physical relationship with her for about half an hour giving her assurance that he shall marry her. She has denied that she did not meet the accused after 17.02.2008. Between 25.02.2008 and 06.03.2008, she remained at home. She had told her parents about the FIR after getting it lodged on 25.02.2008 itself. She had not told them about the contents of FIR. She had told her parents on 25.02.2008 that she was friendly with the accused and he had assured marriage to her and established physical relationship but he had refused to marry her regarding which she had lodged the FIR. She and her parents had discussed about the FIR between 25.02.2008 and 06.03.2008. It was on her decision that her parents had accompanied her to PS Uttam Nagar on 06.03.2008. She did not ask her parents between 25.02.2008 and 06.03.2008 to go to PS. Her parents had lodged a missing report in the PS Uttam Nagar as well as PS Shakur Pur prior to 25.02.2008 when she was missing for one night. She has admitted that no such copy of missing report is on the judicial file. She has denied that her Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 33 of 70 ::-
-:: 34 ::-
parents had not lodged any such missing report. She has denied that the accused had never promised to marry her. She has denied that the accused has never established physical relationship with her on the false pretext of marriage. She has denied that there was no physical relationship between herself and the accused. She has denied that the accused has never raped her. She has denied that the accused is innocent and has been falsely implicated in this case at her instance in order to compel him to marriage her as he is rich and she belong to a poor family. She has denied that she has made a false complaint of rape on 06.03.2008 in order to pressurize the accused to marry her. She has denied that she had also made a false complaint on 25.02.2008. She has denied that she is deposing falsely.
68. The counsel for the accused, after reading the evidence of the prosecutrix in the Court, has argued that it suffers from numerous contradictions in respect of the date and year of the alleged incident, the improvements regarding the place of incident-Badkal Lake, no hotel record produced etc which show that her evidence is false. It has been argued that there are contradictions in the evidence of the prosecutrix and her statements to the police which indicates that no offence has been committed.
69. It may be observed here that the evidence of the prosecutrix was recorded much later to the incident and lodging of the FIR and the possibility of her forgetting the details regarding the dates cannot be completely ruled out.
70. In the judgment reported as, State of H.P. v. Lekhraj and Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 34 of 70 ::-
-:: 35 ::-
another, JT 1999 (9) SC 43, it was observed by the Supreme Court of India as under :-
"In the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like................The traditional dogmatic hyper technical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial."
71. In the judgment reported as, Surender Singh v. State of Haryana, JT 2006 (1) SC 645, it was observed by the Supreme Court of India as follows:
"It is well-established principle of law that every discrepancy in the witness statement cannot be treated as a fatal to the prosecution case. The discrepancy, which does not affect the prosecution case materially, does not create infirmity."
72. As far as minor inconsistencies are concerned in the statement of the prosecutrix, it may be observed minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. When the discrepancies were comparatively of minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. In the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 35 of 70 ::-
-:: 36 ::-
normal person. Even otherwise, when an eye witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully made his testimony totally non- discrepant. But Courts should bear in mind that it is only when discrepancies in evidence of witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
73. The Supreme Court had an opportunity to discuss as to why discrepancies arise in the statements of witnesses. In the judgment reported as Bharwada Boginbhai Hijri Bhai v. State of Gujarat, 1983 (CRI) GJX 0252 SC, the Supreme Court pointed out the following reasons as to why the discrepancies, contradictions and improvements occur in the testimonies of the witnesses.
(a)By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(b)Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(c)The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
(d)By and large people cannot accurately recall a conversation Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 36 of 70 ::-
-:: 37 ::-
and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(e)In regard to exact time of an incident, or the time duration of an occurrence, usually people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time sense of individuals which varies from person to person.
(f)Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated lateron.
(g)A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, of fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved through the witness is giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of psychological defence mechanism activated on the moment.
74. There is no reason shown why the prosecutrix would choose the accused only for leveling false allegations of rape and why she would jeopardize her future by doing so especially when there are no allegations of her having any vested interests or mala fide motive. It may be mentioned here that in the judgment reported as State of H.P. v. Shree Kant Shekari, (2004) 8SCC 153, it was observed by the Supreme Court that:
"In any event no girl of tender age and her parents would like to jeopardize her entire future by falsely implicating a person alleging forcible sexual intercourse."
Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 37 of 70 ::-
-:: 38 ::-
75. As regards the incident of Badkal Lake, the prosecutrix has mentioned about the same in her statement to the police Ex.PW1/B although there is no mention of the same in her first statement Ex.PW1/A. Even in her evidence the narration about the accused taking her to Badkal Lake and establishing physical relations after proposing to marry her remains unshatterred.
76. The fact that in her cross examination dated 28.01.2013, she has admitted that whenever a person visits a hotel for stay purpose an entry is made in the register and perhaps the entry was made at Badkal lake regarding their visit, and this part of the evidence is not controverted by the accused. He has not even suggested that they did not go there.
77. She has deposed that the accused had talked with her regarding marriage about 20/22.02.2008 for the first time and she also had talked with the accused regarding their marriage after 20/22.02.2008. The accused did not make any proposal to her before 20/22.02.2008. It is argued on behalf of the accused this is in contradiction to her statements to the police as well as her examination in chief where the date of 17.02.2008/18.02.2008 is mentioned. It may be observed here that the exact date is not required from the prosecutrix every time, especially when she has stated it in her examination in chief. It is the act which is relevant and not the date of the act.
78. Similarly, the contradictions of January and February, 2008 are also too minor to be taken into considered and can be ignored as she has categorically deposed that her consent was forced as he had told her that he Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 38 of 70 ::-
-:: 39 ::-
would marry her but he did not marry her. She dis not remember the dates but it was in the months of January-February in the year 2008, when the accused had physical relationship with her and raped her but it was 2-3 times.
79. It is also clear that it was only after making the complaint on 25.02.2008 that she had told her parents about the incident as she has deposed that she had told her parents about the FIR after getting it lodged on 25.02.2008 itself. She had not told them about the contents of FIR. She had told her parents on 25.02.2008 that she was friendly with the accused and he had assured marriage to her and established physical relationship but he had refused to marry her regarding which she had lodged the FIR. She and her parents had discussed about the FIR between 25.02.2008 and 06.03.2008.
80. It may be observed here that it is settled principle of law that it is not in every case that the version of the prosecutrix must be corroborated in material particulars by independent witnesses. In a case where the Court is satisfied that the testimony of the prosecutrix is free from blemish and is implicitly reliable, then on the sole testimony of the prosecutrix conviction can also be recorded but in appropriate cases the Court may look for corroboration from independent sources or circumstances. The testimony of the prosecutrix has to be tested on the touch stone of truthfulness and credibility.
81. The Hon'ble Supreme Court of India, in the judgment reported as Pandurang Sitaram Bhagwat v. State of Maharashtra, 2005 Cri.L.J 880 has held as under :
Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 39 of 70 ::-
-:: 40 ::-
"....... The approach of the learned trial judge as noticed supra that ordinarily a lady would not "put her character at stake" may not be wrong but cannot be applied universally . Each case has to be determined on the touchstone of the factual matrix thereof. The law reports are replete with decisions where changes under section 376 and 354 of IPC have been found to have been falsely advanced ( para 16)"
"we are not oblivious that the doctrine " falsus in uno, falsus in omnibus" is not applicable in India but the evidence led by the parties must be appreciated keeping in view the entirety of the situation.... PW 2 and PW 3 not only failed to substantiate the allegation as regards commission of offence under section 323, 504, 506 read with section 34 IPC but also implicated the three persons falsely. The statement of the said witnesses should have been accepted with the pinch of the salt and keeping in view the admitted animosity between the parties. The background of the case vis a vis continuous animosity between the complainant and her husband , on one hand as also the appellents and his other tenants could not have been lost sight of by the learned trial judge( Para 20)"
82. In the judgment reported as Ram Das and ors v. State of Maharashtra, AIR 2007 SC 155, the Hon'ble Supreme Court has held as under:
"........ It is no doubt true that the conviction in case of rape can be based solely on the testimony of the prosecutrix, but that can be done in a case where the court is convinced about the truthfulness of the prosecutrix and there exists no circumstances which cast a shadow of doubt over her veracity. If the evidence of the prosecutrix is of such quality that may be sufficient to sustain an order of conviction solely on the basis of her testimony. In the instant case we do not find her evidence to be of such quality. It is no doubt true that mere delay in lodging the first information report is not necessarily fatal to the case of the prosecution. However, the fact that the report was lodged belatedly is a relevant fact of which the court must take notice. This fact has to be Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 40 of 70 ::-
-:: 41 ::-
considered in the light of other facts and circumstances of the case and in a given case the court may be satisfied that the delay in lodging the report has been sufficiently explained .....There may also be cases where on the account of fear and threats, witness may avoid going to the police station immediately........It is also possible to corrceive the cases where the victim and the members of his or her family belong to such a strata of society that they may not even be aware of their right to report the matter to police and seek the legal action, nor was any such advice available to them. In the case of sexual offences there is another consideration which may weight in the mind of the court i.e. the initial hesitation of the victim to report to the police which may affect her family life and family reputation ...In the ultimate analysis, what is the effect of the delay in lodging the report with the police is a matter of appreciation of evidence and court must consider the delay in the background of the facts and circumstances of such case (para17 )..."
83. The Hon'ble Supreme Court of India in the judgment reported as Dinesh Jaiswal v. State of M.P, AIR 2010 SC 1540 has held as under :
"........ Mr. C.D Singh has however placed reliance on Moti lal's case (AIR 2008 SCC (Supp) 882:2008 AIR SCW 4846) (Supra) to contend that the evidence of the prosecutrix was liable to be believed save in exceptional circumstances. There can be no quarrel with the proposition and it has been so emphasised by this court time and again but to hold that a prosecutrix must be believed irrespective of the improbabilities in her story is an argument that can never be accepted. The test always is as to whether the given story prima facia inspires confidence. We are of the opinion that the present matter is indeed an exceptional one (para 5)......"
84. Therefore, it is clear that the evidence of the prosecutrix is reliable and believable despite the contradictions in the same as they are too minor and insignificant and do not strike at the root of the case. It cannot be expected Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 41 of 70 ::-
-:: 42 ::-
from a young girl to whom marriage is promised by a man for having physical relationship to remember all the dates and details especially when she is aware about his presence in the Court. She has to deal with the discomfort and face the battery of questions due to which there is a possibility that she may get mixed up or confused about the dates and details.
CONSENT OF THE PROSECUTRIX-PROMISE TO MARRY
85. It has been argued on behalf of the accused that the prosecutrix was a consenting party. She willing entered into physical relationship with the accused without any promise to marry from his side.
86. It may be observed here that consent is an act of reason coupled with deliberation, after the mind has weighed the good and evil on each side in a balanced manner. Consent denotes an active will in the mind of a person to permit the doing of an act complained off. Consent on the part of a woman, as a defence to an allegation of rape, requires voluntary participation, not only after the exercise of intelligence, based on the knowledge of the significance and the moral quality of the act, but after having freely exercised a choice between resistance and assent.
87. An argument has been raised by the Additional Public Prosecutor that the accused on the pretext of love and promise to marry established a physical relationship with the prosecutrix which amounts to rape as this is obtaining the consent of the prosecutrix by fraud and incitement which neither voluntary nor free. Had the prosecutrix known that the accused would not marry her, she would not established physical relations with him. Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 42 of 70 ::-
-:: 43 ::-
88. On the other hand, it had argued by the counsel for the accused that the prosecutrix had physical relationship with the accused with her free consent and will.
89. The crucial expression in section 375 of the IPC which defines rape as against her will. It seems to connote that the offending act was despite resistance and opposition of the woman. IPC does not define consent in positive terms. But what cannot be regarded as consent is explained in Section 90 which reads as follows:
"Consent given firstly under fear of injury and secondly under a misconception of fact is not consent at all."
90. Jowitts Dictionary on English Law, Words and Phrases, Permanent Edn. explains "consent" as follows:
"Consent supposes three things a physical power, a mental power and a free and serious use of them. Hence it is that if consent is obtained by intimidation, force, meditated imposition, circumvention, surprise or undue influence, it is to be treated as a delusion, and not as a deliberate and free act of mind."
91. In Words and Phrases, Permanent Edn., Vol.8-A, the following passages culled out from certain old decisions of the American Courts are found:
".....adult females understanding of nature and consequences of sexual act must be intelligent understanding to constitute consent."
Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 43 of 70 ::-
-:: 44 ::-
92. Here, it would be necessary to mention that in the case reported as Jayanti Rani Panda v. State of West Bengal and anr., 2002 SCC (Cri) 1448, it has been observed that:
"The failure to keep the promise at a future uncertain date due to reasons not very clear on the evidence does not always amount to a misconception of fact at the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. The matter would have been different if the consent was obtained by creating a belief that they were already married. In such a case the consent could be said to result from a misconception of fact. But here the fact alleged is a promise to marry we do not know when. If a full grown girl consents to an act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact. Section 90 IPC cannot be called in aid in such a case unless the Court can be assured that from the very inception the accused never really intended to marry her."
93. In the present case, it is clear that that the consent of the prosecutrix on the promise to marry can be said to be under a misconception of fact as she was allured into having physical relations with the accused.
94. It is clear from the evidence of the prosecutrix, her complaint (Ex.PW1/A) as well as her statement (Ex.PW1/B) that she has stated all through out that the accused developed physical relations with her on the promise to marry her. Had he not so promised, she would not have allowed him to have physical relations with her. The physical relations had been developed between the accused and prosecutrix and later the accused Mr.Vijit Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 44 of 70 ::-
-:: 45 ::-
Aggarwal had refused to marry her. In the year 2008, when the accused had made physical relations with her and thereafter the prosecutrix had been called by accused Mr.Vijit Aggarwal at Pragati Maidan and then the accused took her at 10:00 a.m. to Badhkal Lake from Pragati Maidan in Indica Car. The accused booked a room at Badhkal Lake and she remained in the said room for half an hour and he made physical body relations with her. Firstly, the prosecutrix had refused to make physical relations and when the accused had proposed her to marry him and to make physical relations with her, then the prosecutrix had permitted the accused to have physical relations with her. She had made physical relations with the accused three-four times.
95. After establishing physical relations with her, he became untraceable on which she was left with no other course but to make a complaint against him to the police.
96. Prosecutrix reacted immediately upon realizing that the accused has broken his promise to marry her and had been establishing sexual relations with her on the basis of false promise, implying thereby that her consent for the sexual act was obtained under a misconception of fact, thus constituting rape within the meaning of Section 375 IPC.
97. The veracity of the testimony of the prosecutrix remained un- shattered and un-impeached despite lengthy cross examination. She deposed that the accused continued to establish sexual relations with her on the pretext of marriage.
Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 45 of 70 ::-
-:: 46 ::-
98. The Hon'ble Supreme Court in numerous judicial pronouncements has also laid down that the deposition of the prosecutrix in a rape case is vital and can be relied upon without looking for any corroboration if the testimony of prosecutrix is otherwise credible and inspires confidence.
99. In the case reported as State of Punjab vs. Gurmit Singh & Ors., AIR 1996 SC 1393(1), the Hon'ble Apex Court observed that "Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding.......The courts shoulder a great responsibility while trying an accused on charges on rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
100. The accused and his counsel have relied upon following judgments in support of the arguments that the offence of rape is not made out in the facts and circumstances of the present case:
a) Pradeep Kumar @ Pradeep Kumar Verma versus State of Bihar & anr., Manu/SC/3266/2007
b) Uday vs. State of Karnataka, AIR 2003 SC 1639,
c) Rana Rajendra Kumar Singh vs. State of Jharkhand decided on 17th August, 2009 (Hon'ble Jharkhand High Court) &
d) Sujit Kumar v. State, Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 46 of 70 ::-
-:: 47 ::-
101. I have carefully perused the same considering in the facts and circumstances of the present case.
102. In its landmark judgment in Uday vs. State of Karnataka, AIR 2003 SC 1639, the Hon'ble Supreme Court observed as under:
" There is no strait jacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. The Court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact".
103. In the above referred case the Hon'ble Supreme Court also held that the consent given by the prosecutrix for sexual intercourse with a person with whom she is deeply in love, who had promised that he would marry her at later date cannot be said to be given under a misconception of fact.
104. This view of Hon'ble Apex Court was again followed by Hon'ble Supreme Court in the case of Deelip Singh @ Dilip Kumar, AIR 2005 SC 2003, where it was held that where prosecutrix was raped with her consent even before promise to marry was given, consent by victim girl cannot be said to be given on misconception under Section 90 IPC.
105. In the case of Manish Kumar Jayant vs. State & Anr., 2005(3) JCC 1611 the Hon'ble Delhi High Court also relied upon the cases of Uday Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 47 of 70 ::-
-:: 48 ::-
and Deelip Singh vs. State of Bihar and observed that the offence of rape is not made out on the allegations that physical relations developed between the prosecutrix and the accused out of a love affair and it is only subsequent to the such relations that the accused had promised to marry her which remained unfulfilled.
106. However, in the case of Deelip Singh @ Dilip Kumar, AIR 2005 SC 2003, the Hon'ble High Court further observed that "In other words, if the promise to marry the prosecutrix was only to seduce the prosecutrix to the sexual act, sexual intercourse on consent so derived would be an offence of rape."
107. Keeping in view the aforesaid observations of the Hon'ble Superior Courts, it is apparent that where the sexual relations between the victim and the accused arise out of a love affair and subsequently accused fails to fulfill his promise to marry the victim, the offence of rape cannot be said to be made out in such circumstances. However, the present case, in my opinion, stands on a totally different footing.
108. A view which is likely to result in vicitimization or exploitation of innocent girls needs to be avoided and the Courts need to take a view which would discourage unscrupulous from taking advantage of innocent girls by alluring them and having physical relations with them on a false promise of marriage. If a view otherwise is taken, it will amount to putting premium on the mis-conduct of a men which is not only highly reprehensible and abhorable but also criminal in nature. If this allowed to happened it will enable immoral and dishonest persons to exploit girls by alluring them with a Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 48 of 70 ::-
-:: 49 ::-
false promise of marriage, pressurizing them to have physical relations with them by making them believe that they are going to marry them and there is nothing wrong in having relations with a person who is very soon going to be her husband and later on turn their back at her in a comfortable belief that the law being on their side, they can easily get away with their misdeeds. The Court can not and should not give such a licence to those who keep on looking for opportunities to exploit the sentiments and vulnerability of Indian girls who perceive marriage as a pious bonding and not as a union of two bodies. Allowing such persons to go scott free after exploiting poor and helpless girls in this manner could not have been the intention of the legislature which considered rape to be such heinous as to attract imprisonment upto life. (Reliance can be placed upon the judgment of the Hon'ble Delhi High Court dated 01.02.2010 in Nikhil Parasar versus The State Govt NCT Of Delhi in bail application no.1745/2009.)
109. Recently the Hon'ble Delhi High Court vide order dated 04.01.2013 in Dilroze Ahmed versus State in bail application no.5/2013 dismissed the anticipatory bail application of the accused in a case similar to the present case, where the accused giving promise to marry had physical relations with the prosecutrix and later refused to marry her.
110. The Hon'ble Delhi High Court vide order dated 05.01.2012 in Chanchal versus State & anr., in Crl. Rev.P. No. 366 of 2008 upheld the order of framing the charge for the offence under section 376 IPC where the accused on the promise to marry had physical relations with the prosecutrix and later refused to marry her.
Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 49 of 70 ::-
-:: 50 ::-
111. In Pradeep Kumar @ Pradeep Kumar Verma versus State of Bihar & anr., Manu/SC/3266/2007, the Hon'ble Supreme Court observed that a promise to marry without anything more will not give rise to misconception of fact within the meaning of Section 90, I.P.C., it needs to be clarified that a representation deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent. If on the facts it is established that at the very inception of the making of promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of Section 375 of the IPC clause second.
112. The Hon'ble Apex Court in the judgment reported as Yedla Srinivasa Rao versus State of A.P (2006) 11 Supreme Court Cases 615 observed that value of consent when obtained under misconception by playing fraud by the accused by making a false promise to marry which he never intended to fulfill then such fraudulent consent cannot be said to be a consent so as to condoned the offence of the accused and such consent was of no consequence. The act falls in the second category as numerated section 375 of the IPC (sexual intercourse without consent of victim). The conviction and sentencing of the accused under section 376 IPC were held to be justified.
113. The prosecutrix being a young girl of impressionable age (she was 19 years old as per complaints Ex.PW1/A and Ex.PW1/B) was kept under Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 50 of 70 ::-
-:: 51 ::-
false promise of marriage by the accused. She deposed before the Court that the accused who became friends with her. He told her that he would marry her and had physical relations with her. On the assurance that he would marry her, he raped her.
114. All these facts indicate that since the beginning of relationship with the prosecutrix, he did not have any intention to marry her although he promised to marry her and has only exploited her by having physical relations with her. Had she known that he would not marry her, she would not have had any physical relationship with him. Her so called consent for physical relations is based on misconception and is neither free nor voluntary and therefore, the same amounts to rape, as defined under section 375 of the IPC.
115. It has also been argued that all the details especially about the accused taking the prosecutrix to Badkal Lake are not mentioned in the complaints (Ex.PW1/A and Ex.PW1/B) and this makes the prosecution version unbelievable. However, I am of the considered opinion that the FIR, the initial complaint are not required to contain all the details as it is the gist of the offence which needs to be told to the police and all the details can be deposed in the Court in the evidence.
116. It also cannot be said that the same are improvements are the same only are clarifications and explanations. In my considered opinion, not much relevance can be attached to the fact that all the details are not mentioned in the first complaint, in view of the fact that the prosecutrix was never confronted with the questions in her entire cross examination on behalf of the Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 51 of 70 ::-
-:: 52 ::-
accused. The fact that the prosecutrix was neither cross examined on this aspect nor confronted with her complaint in this respect would imply that the details are not disputed.
117. Moreover, it is well settled law that the FIR need not be an encyclopedia of facts of any case. Reliance can be placed upon the judgment of Hon'ble High Court of Delhi reported as Rajinder @ Lala & etc. vs. State reported as 2010 Crl.L.J. 15, wherein it has been categorically held that "It is no longer res integra that it is not the requirement of law that every minute detail of the occurrence needs to be recorded in the FIR. The FIR is not intended to be an encyclopedia of the background scenario of the crime.........The legal principle which can be culled out is that the omission of material facts pertaining to the crime in the FIR is a relevant factor in judging the veracity of the evidence of the maker of the FIR but by itself is not sufficient to throw the evidence of the said witness. If the evidence of said witness is otherwise found to be credible, the omission in the FIR is of no consequence."
118. Considering the above facts and circumstances of the present case, the judgments relied upon by accused have no application to the present case, they being totally distinguishable on facts.
119. In the present case, it is not the plea of the accused that the prosecutrix consented to establish sexual relations with the accused as she was in love with him. Not even a single suggestion to this effect was given to the prosecutrix during her entire cross examination. Rather, from the deposition of the prosecutrix, it has been established on record that the accused Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 52 of 70 ::-
-:: 53 ::-
established sexual relations with the prosecutrix after keeping her under a false promise that he would marry her. She continued to have sexual relations with the accused believing his promise to be true though the accused apparently made promise to marry the prosecutrix only to seduce her into the physical relationship and in fact never intended to marry her. In such circumstances, it is certainly not a case where the consent of the prosecutrix can be said to be free or voluntary and not based on misconception.
120. It is chrystal clear from the unshaterred evidence of the prosecutrix that the accused told her that he would marry her. Thereafter, the accused had sexual intercourse with the prosecutrix without her consent forcibly. The accused maintained sexual relations with the prosecutrix 2/3 times.
121. From the above discussion, it is clear that the evidence of the prosecution is fully reliable, believable and trustworthy regarding the veracity of the prosecution case and the prosecution has successfully established the commission of the offence of rape.
122. Consequently, in the light of the above discussion, I am of the opinion that the offence of rape punishable under Section 376 IPC clearly proved to have been committed by the accused considering the overall facts and circumstances of the present case. Accordingly, the accused is hereby convicted for the offence punishable under Section 376 IPC.
INVESTIGATION
123. The investigation conducted in the present case has been deposed Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 53 of 70 ::-
-:: 54 ::-
by PWs 2, 3, 6 (SI Sanwar Mal), 8, 9 (SI Renuka) and 10 (SI Vijay Pal Singh). The FIR has been proved by PW5. The MLCs of the prosecutrix and the accused have been proved by PW4 and PW12 respectively. The FSL report has been proved by PW13. There is nothing on the record which could show that the investigation has not been conducted properly, fairly and impartially.
124. The investigation conducted including the documents prepared in the present case has been substantially proved by the police witnesses including the first and the second IOs. They have clearly deposed that they were informed about the rape of the prosecutrix; the accused as well as the prosecutrix were taken to the hospital for their medical examination; accused was arrested; documents pertaining to his arrest were prepared; parcels of the accused and the prosecutrix were seized; medical documents were prepared; parcels were collected from the doctor and sent to the FSL for examination; etc. There is nothing on the record to show that their testimonies are false or not reliable.
125. It is the actual crime which is important than the investigation. Where the actual crime is being elaborated and proved in the evidence of PW1, then the investigation becomes less important as PW1 has not only deposed regarding the manner of commission of the crime but has also elaborated all the details and has assigned a clear and specific role to the accused.
126. There are two stages in the criminal prosecution. The first Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 54 of 70 ::-
-:: 55 ::-
obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or it has not been proved in evidence at trial, does it absolve the liability of the culprit who has committed the offence? The answer is logically in the negative as any lapse on the part of the investigation does not negate the offence.
127. It may also be observed here that the accused has also failed to show that he is not the person who had raped the prosecutrix under the promise to marry and made her go through a farce of marriage ceremony which is not lawful and valid. He has also failed to lead any evidence to substantiate his claim or falsify the prosecution version or show that the evidence of the prosecution witnesses is not reliable and credible.
CONCLUSION
128. It s clear from the record that the evidence of the prosecutrix is free from blemishes. It is worthy of credence and trust. Nothing has been shown by the accused to indicate that the prosecutrix had any vested interest in leveling false allegations against him. It is also clear from the record that the accused proposed to marry the prosecutrix and on a promise to marry, he established physical relations with her and then walked out of her life. Firstly, the prosecutrix had refused to make physical relations and when the accused had proposed her to marry him and to make physical relations with her, then the prosecutrix had permitted the accused to have physical relations with her.
129. Strength can be drawn from the case reported as Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (SC), 1983 A.I.R.(S.C.) 753, Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 55 of 70 ::-
-:: 56 ::-
wherein the Apex Court observed:
"The solution of problems cannot therefore be identical. It is conceivable in the Western Society that a female may level false accusation as regards sexual molestation against a male for several reasons such as :-
(1) The female may be a 'gold digger' and may well have an economic motive to extract money by holding out the gun of prosecution or public exposure.
(2) She may be suffering from psychological neurosis and may seek an escape from the neurotic prison by phantasizing or imagining a situation where she is desired, wanted, and chased by males.
(3) She may want to wreak vengeance on the male for real or imaginary wrongs. She may have a grudge against a particular male, or males in general, and may have the design to square the account.
(4) She may have been induced to do so in consideration of economic rewards, by a person interested in placing the accused in a compromising or embarrassing position, on account of personal or political vendetta.
(5) She may do so to gain notoriety or publicity or to appease her own ego or to satisfy her feeling of selfimportance in the context of her inferiority complex.
(6) She may do so on account of jealousy.
(7) She may do so to win sympathy of others.
(8) She may do so upon being repulsed.
10. By and large these factors are not relevant to India, and the Indian conditions. Without the fear of making too wide a statements or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted. The statement is generally true in the context of the urban as also rural Society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites."
Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 56 of 70 ::-
-:: 57 ::-
130. In the case of Sharad Birdhichand Sarda v. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent onlywith the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
131. Applying the above principles of law to the facts of present case, it is evident that the evidence of the prosecution especially the prosecutrix is reliable, believable and trustworthy and the prosecution has established the case of wrongful confinement, rape, threat and simple hurt. The facts of the case are consistent with the hypothesis of guilt of the accused.
132. The prosecution has successfully proved that between 25.01.2008 to 18.02.2008 from time to time at various places in and around Delhi, he had committed rape on the prosecutrix (name withheld to protect her identity) by promising to marry her and establishing physical relations.
Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 57 of 70 ::-
-:: 58 ::-
133. The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, MLC, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by circumstantial evidence and the witnesses of the prosecution have been able to build up a continuous link. All the facts relevant in respect of the offence punishable under section 376 of the IPC have been properly proved.
134. In view of the foregoing reasons, the conscience of this Court is completely satisfied that the prosecution has been able to successfully bring home the charge against the accused Mr.Vijit Aggarwal regarding the commission of offence punishable under section 376 of the IPC.
135. Accordingly, the accused, Mr.Vijit Aggarwal, is hereby convicted for having committed offence punishable under section 376 of the IPC.
136. Let him be heard of the point of sentence.
Announced in the open Court on (NIVEDITA ANIL SHARMA) this 04th day of March, 2013. Additional Sessions Judge, Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 58 of 70 ::-
-:: 59 ::-
(Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi.
************************************************************** Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 59 of 70 ::- -:: 60 ::- IN THE COURT OF MS. NIVEDITA ANIL SHARMA, ADDITIONAL SESSIONS JUDGE (SPECIAL FAST TRACK COURT)-01, WEST, TIS HAZARI COURTS, DELHI Sessions Case Number : 11 of 2013. Unique Case ID Number : 02401R1406092008. State Versus Mr.Vijit Aggarwal Son of Mr. Vijay Aggarwal, Resident of 33/27, Bhikham Singh Colony, Gali No. 16, Vishwas Nagar, Shahdara, Delhi. First Information Report Number : 73/08 Police Station Uttam Nagar, Under section 376 of the Indian Penal Code. Date of filing of the charge sheet before : 02.12.2008. the Court of the Metropolitan Magistrate Date of receipt of file after committal : 03.03.2009. In the Sessions Court Date of transfer of the file to this Court : 05.01.2013. ASJ (SFTC)-01, West, THC, Delhi. Date of judgment : 04.03.2013. Date of conclusion of arguments on sentence : 06.03.2013. Date of order on sentence : 06.03.2013.
Appearances: Mr.Anil Kumar, Additional Public Prosecutor for the State.
Convict in judicial custody.
Mr.M.K.Sharma, counsel for the convict..
Ms.Sadhna Singh, counsel for the Delhi Commission for Women.
************************************************************** Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 60 of 70 ::-
-:: 61 ::-
ORDER ON SENTENCE
1. In pursuance of judgment dated 04.03.2013 as passed by this Court convicting the accused namely Mr.Vijit Aggarwal for offence punishable under section 376 of the Indian Penal Code (hereinafter referred to as the IPC), I have heard the Additional Public Prosecutor for the State as well as the counsel for the convict on the point of quantum of sentence to be awarded to the convict and also perused the case record.
2. It has already been observed in the judgment that this case is a glaring example of the growing menace of sexual abuse. Rape is an abominable and ghastly and it worsens and becomes inhuman and barbaric when the victim is subjected to unwanted physical contact by a perverted male adult who on the assurance and promise to marry had physical relationship with her and then walked out of her life.
3. "The psychological harm on the victim is massive as it evokes doubts, raises questions for which answers are not easy to get. The victim may suppress emotions or be filled with feelings of rage, guilt and shame. It is difficult for such victims to trust others later on in life. The victim needs to stand up for himself/herself and not allow the trauma to make them psychologically and socially weak. Active social support from family, friends, guidance centres and counselors can bring the victim's faith in the goodness of human beings back." ---Dr.Sanjay Chugh, Senior Consulting Psychiatrist.
Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 61 of 70 ::-
-:: 62 ::-
4. The victim lacks self-confidence and is always under a sense of guilt and denial. It's not about the body. It's more about the mind. Sexual abuse is a rape of the mind and thought processes.
5. The Additional Public Prosecutor for the State has requested for the maximum sentence to be imposed upon the convict submitting that he does not deserve any leniency keeping in view the offence committed by him.
6. The convict and his counsel, on the other hand, have requested for a lenient view to be taken against him and for his release on probation as the convict hails from a modest family. He is aged 33 years and is married with two minor children. His aged father is also dependent upon him. Both the minor children of the convict are not keeping well and the elder one needs to undergo a heart surgery. He is doing a private job. He was in custody w.e.f. 06.03.2008 to 27.03.2008. He is a first offender and has never committed any offence earlier. It is also submitted that he shall not commit any offence in future.
7. Considering the aforesaid submissions from both the sides, the family circumstances of the convict and perusing the case record, I consider it proper to award a substantive sentence upon the convict. Rape in itself is abominable and ghastly and it worsens and becomes inhuman and barbaric when the convict under the guise of promise to marry the prosecutrix has violated her person and soul by having physical relationship and then refused to marry her. He has subjected the prosecutrix to unwanted physical contact by a perverted male adult as had she known that he would not marry her, she Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 62 of 70 ::-
-:: 63 ::-
would not have surrendered herself to him into a physical relationship. Her consent was obtained by fraud and on mis-conception of facts.
8. Keeping in view the offence committed by the convict, I am not inclined to take a lenient view against him and release him on probation. He has raped a young woman who was helpless, defenceless, vulnerable and an easy prey. He has violated the very sanctity of the relationship between them.
9. I am of the considered opinion that the convict should be awarded a substantive, stern and firm sentence because he has defiled her. As per social morality which attaches highest importance to the chastity of a woman, the outrage and breach of her privacy and modesty is a heinous offence. Keeping into consideration the fact that the act of rape is an act of a perverted man, the minimum sentence provided of seven years or a lesser imprisonment should not be awarded to the convict. I do not find any mitigating factors.
10. The object of sentence should be to protect the society and to deter the criminal in achieving the avowed object to law by imposing appropriate sentence. The Courts are expected to operate the sentencing system so as to impose such sentence which reflects the conscience of the society and sentencing process has to be stern where it should be. To show mercy in the case of such a heinous crime would be a travesty of justice and the plea for leniency is wholly misplaced. The welfare and interest of other women in the society also needs to be protected for the reason that if the convict is released, they may be subjected by him in a similar offence with them.
Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 63 of 70 ::-
-:: 64 ::-
11. It has been held in the judgment reported as State of Karnataka v. Raju, 2007 (11) SCC 490, as follows:
"The measure of punishment in a case of rape cannot depend upon the social status of the victim or the accused . It must depend upon the conduct of the accused, the state and age of the sexually assaulted female and the gravity of the criminal act. Crimes of violence upon women need to be severely dealt with. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the Court. There are no extenuating or mitigating circumstances available on the record which may justify imposition of any sentence less than the prescribed minimum on the respondent. ? To show mercy in the case of such a heinous crime would be a travesty of justice and the plea for leniency is wholly misplaced. The legislative mandate to impose a sentence, for the offence of rape on a girl under 12 years of age, for a term which shall not be less than 10 years, but which may extend to life and also to fine reflects the intent of stringency in sentence."
12. Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats.
13. In AIR 2000, Supreme Court, 1470, the Supreme Court held has under:
Socio-economic, status, religion, race caste or creed o the accused or the victim are irrelevant considerations in sentencing policy. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. Courts must hear the Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 64 of 70 ::-
-:: 65 ::-
loud cry for justice by the society in cases of heinous crime of rape on innocent helpless girls of tender years, and respond by imposition of proper sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the court.
14. In the judgment reported as Shri Bodhisattwa Gautm v. Miss Subhra Chakraborty, AIR 1996 SC 922, the Hon'ble Apex Court observed that:"
The entire psychology of a woman and pushes her into deep emotional crisis. It is a crime against basic human rights, and is also violative of the victim's most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21 of the Constitution of India, 1950 (in short the 'Constitution'). The Courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. A socially sensitized judge, in our opinion, is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisions."
15. In the present case, the convict has committed rape on a pregnant young woman. Due to her medical condition and the threat extended to her by the convict, she was in a position to offer much resistance to the convict. The convict has taken advantage of a helpless and defenceless vulnerable prey. She must have undergone immense physical pain and agony when the offence was committed. The convict went on to commit the ghastly, abominable, inhuman and barbaric act of rape, violating her person and giving her a lifelong trauma.
16. A view which is likely to result in vicitimization or exploitation of Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 65 of 70 ::-
-:: 66 ::-
innocent girls needs to be avoided and the Courts need to take a view which would discourage unscrupulous from taking advantage of innocent girls by alluring them and having physical relations with them on a false promise of marriage. If a view otherwise is taken, it will amount to putting premium on the mis-conduct of a men which is not only highly reprehensible and abhorable but also criminal in nature. If this allowed to happened it will enable immoral and dishonest persons to exploit girls by alluring them with a false promise of marriage, pressurizing them to have physical relations with them by making them believe that they are going to marry them and there is nothing wrong in having relations with a person who is very soon going to be her husband and later on turn their back at her in a comfortable belief that the law being on their side, they can easily get away with their misdeeds. The Court can not and should not give such a licence to those who keep on looking for opportunities to exploit the sentiments and vulnerability of Indian girls who perceive marriage as a pious bonding and not as a union of two bodies. Allowing such persons to go scott free after exploiting poor and helpless girls in this manner could not have been the intention of the legislature which considered rape to be such heinous as to attract imprisonment upto life. ( Reliance can be placed upon the judgment of the Hon'ble Delhi High Court dated 01.02.2010 in Nikhil Parasar versus The State Govt NCT Of Delhi in bail application no.1745/2009.)
17. Sexual violence apart from the being a dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity. It degrades and humiliates the victim and leaves behind a traumatic Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 66 of 70 ::-
-:: 67 ::-
experience. A rapist not only causes physical injuries but more indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, honour, reputation and not the least her chastity. Rape is not only a crime against the person of a woman, it is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crisis. It is a crime against basic human rights, and is also violative of the victim's most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21 of the Constitution of India, 1950 (in short the Constitution) the Courts, are therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. A society sensitized judge is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisions (Reliance can be placed upon 2004 IX AD (S.C.) 5 and Shri Bodhisattwa Gautam v. Miss Subhra Chakraborty (AIR 1996 SC 922).
18. Recently, crime against women generally and rape in particular is on the increase and the society also appears to be concerned for the honour of women. In this backdrop, this Court is required to treat the issue with more sensitivity. The object of sentence is not only required to be reformative but it should also be punitive, preventive and deterrent. The offences against women are on a rise and there is an urgent need to curb this tendency by awarding deterrent punishment to perpetrators of this grave offence.
19. In the present case, the act of the convict is most deplorable, both legally and morally. It is time for realization that certain category of sexually Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 67 of 70 ::-
-:: 68 ::-
depraved behaviour is totally unacceptable in the Indian Socio-Legal System which seeks to protect the chastity the first virtue of a woman and such behaviour can prove to be costly as has happened in the present case. The victim is a young woman who reposed trust in the convict and on his promise to marry him surrendered before him into a physical relationship. Then the convict shattered her faith and trust in him and refused to marry her.
20. Keeping in view the ghastly and inhuman act of the convict, a substantive and stern sentence is required to be imposed upon the convict so that it is not only in commensuration with the gravity of the crime but also serves as an example for the others who might also venture on the same forbidden path. The convict does not deserve any leniency.
21. Therefore, considering these aggravating facts, I hereby sentence Mr.Vijit Aggarwal, the convict for offence under section 376 of the IPC to rigorous imprisonment for seven years and a fine in the sum of Rs.50,000/- in default of payment of which, he shall undergo rigorous imprisonment for a period of one year.
22. Benefit of section 428 of the Code of Criminal Procedure shall be given to the convict for the period already undergone by him during the trial, as per rules. The convict is in judicial custody. He is sent to judicial custody for serving the remaining sentence.
24. The entire amount of fine, if realized, is awarded to the prosecutrix Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 68 of 70 ::-
-:: 69 ::-
as compensation for the benefit of the prosecutrix.
25. Further, this Court directs that the State shall pay to the prosecutrix/victim an appropriate sum as victim compensation in terms of Rules 3 and 5 read with Entry 2 to the schedule of the Delhi Victims Compensation Scheme 2011 (notified on 02.02.2012) read with section 357-A of the Cr.P.C. The terms of the scheme entitle every rape victim to minimum compensation of Rs.2 lacs and a maximum compensation of Rs.3 lacs. Having regard to the facts of the case and the circumstances of the prosecutrix/victim, the Government of NCT is directed to pay an appropriate amountof compensation to the victim. 75 % of the amount shall be deposited in a fixed deposit, in terms of Rule 7 of the Scheme, in a nationalized bank for a period of three years and the remaining 25 % shall be available for utilization and initial expenses by the victim/prosecutrix.
26. These directions shall be complied within six weeks. The Delhi Legal Services Authority, which is the designated body under the said Scheme, shall oversee the implementation of these directions. The State shall ensure that the victim is duly informed within one week. The victim shall appear the Delhi Legal Services Authority on 25.03.2013 for the said purpose.
27. The convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi. Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 69 of 70 ::-
-:: 70 ::-
28. A copy of the judgment dated 04.03.2013 and a copy of the order on sentence dated 06.03.2013, duly attested, besides the complete set of copy of the relevant case record, in compliance of directions of the High Court, be given to the convict, namely, Mr.Vijit Aggarwal, free of cost immediately.
29. A copy of the judgment dated 04.03.2013 and a copy of the order on sentence dated 06.03.2013 also be given to the Additional Public Prosecu- tor, as requested.
30. After completion of the formalities and expiry of the period of limitation, the ahlmad is directed to consign the file to the record room.
Announced in the open Court on (NIVEDITA ANIL SHARMA) this 06th day of March, 2013. Additional Sessions Judge, (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi.
************************************************************ Sessions Case Number : 11 of 2013.
Unique Case ID Number : 02401R1406092008.
FIR No. 73/2008, Police Station Uttam Nagar, Under section 376 of the Indian Penal Code.
State versus Vijit Aggarwal -:: Page 70 of 70 ::-