Delhi District Court
Sc No: 385/17 State vs . Soubhagya Bajaj on 16 December, 2017
SC No: 385/17 State Vs. Soubhagya Bajaj
IN THE COURT OF SH. GAUTAM MANAN
ADDITIONAL SESSIONS JUDGE-FAST TRACK
SOUTH-WEST, DWARKA, NEW DELHI
In the matter of:-
S. C. No. 385/17
FIR No. 291/17
Police Station Dabri
Under Section 376/506 IPC
State
Versus
Soubhagya Bajaj
S/o Sh. Gopal Bajaj
R/o C-6 & 7, Adarsh Colony,
Jeevan Park, New Delhi-110059 .....Accused
Date of institution 13.07.2017
Judgment reserved on 04.12.2017
Judgment Pronounced on 16.12.2017
Decision Acquitted
Judgment 1 of 20
SC No: 385/17 State Vs. Soubhagya Bajaj
JUDGMENT
1. Accused is facing trial in the present case on allegations of committing repeated rape upon prosecutrix 'P' aged about 28 years and threatening her.
2. FIR was registered on written complaint made by prosecutrix dated 30.05.2017 alleging that in December 2015 she got mutual divorce from Vivek. Thereafter with consent of her family members she created a profile on Jeevansaathi.com mentioning that she is divorcee. Accused sent her a request on this profile mentioning that he is yet to obtain decree of divorce and he will get it in 4 months time. After three meetings with accused, prosecutrix decided that she would marry him. On 05.09.2016, accused took prosecutrix with him to show his house. When they were having coffee, accused told prosecutrix to establish physical relations with her and thereafter established forcible physical relations with her. When prosecutrix told that she would make a complaint against accused, accused told her that he would marry Judgment 2 of 20 SC No: 385/17 State Vs. Soubhagya Bajaj her after obtaining decree of divorce. Then on asking of sister of accused and trusting promise of accused to marry her, prosecutrix shifted to house of accused where she stayed for 7- 8 months. Accused kept on establishing physical relations with her on the pretext that he would marry prosecutrix. In November, 2016 prosecutrix came to know from mobile of accused that accused has not even filed the case for divorce. When prosecutrix confronted accused, accused gave her beatings and told prosecutrix that he will get engaged with prosecutrix in April. In May, 2017 prosecutrix came to know that she was 15-20 days pregnant but accused gave some medicine to her in milk and stated that he does not want a child. On 19.05.2017, when prosecutrix insisted for marriage accused gave her beatings and then blocked number of prosecutrix and her family members. Prosecutrix alleged that accused established forcible physical relations with her on false promise to marry. She sought a legal action against accused.
Judgment 3 of 20 SC No: 385/17 State Vs. Soubhagya Bajaj
3. After registration of FIR prosecutrix was got medically examined. Her statement was recorded u/s 164 Cr.P.C. Accused was arrested and was charge-sheeted to face trial. Charge for the offence punishable u/s 376(2)(n)/506 (II) IPC was framed against accused to which he pleaded not guilty and claimed trial.
4. Prosecution examined 4 witnesses.
PW Name of witness Nature of Documents proved witness 1 L Prosecutrix Supported prosecution version, proved complaint as Ex.PW1/A, site plan of place of occurrence as Ex PW1/B, statement recorded U/s 164 Cr.P.C as Ex PW1/C, arrest of accused vide memo Ex PW1/D, seizure memo Ex PW1/E & F of documents & CD containing chats, transcript Ex PW1/G to I of chatting with accused and his mother, certificate U/s 65 B IE Act Ex PW1/J, profile Ex PW1/K of accused on Jeevansathi.com 2 Ct Dharmraj Police Arrest, personal search Ex PW2/A, disclosure statement Ex PW2/B, pointing out memo at instance of accused Ex PW2/C. Judgment 4 of 20 SC No: 385/17 State Vs. Soubhagya Bajaj 3 JK Father of Supported prosecution version, prosecutrix 4 SI Kamlesh Investigating Prepared rukka as Ex. PW4/A on Officer basis of complaint of prosecutrix and got registered the FIR, got prosecutrix medically examined and recorded her statement u/s 164 Cr.P.C, she proved arrest, personal search and disclosure statement of accused as Ex. PW2/B & C. Proved DD No.35A as Ex. PW4/D.
5. During trial accused admitted registration of FIR, recording of statement of prosecutrix u/s 164 Cr.P.C, her medical examination, his own medical examination. In view of statement of accused, witnesses cited to prove said documents were dropped.
6. In statement recorded u/s 313 Cr.P.C accused stated that he is falsely implicated by prosecutrix. She is involved in number of similar cases where she falsely implicated other persons and extorted money from them. Accused alleged that prosecutrix is habitual in filing false rape cases to extort money.
Judgment 5 of 20 SC No: 385/17 State Vs. Soubhagya Bajaj
7. In defense in order to establish that prosecutrix is habitual in filing false rape cases examined four witnesses. DW1 HC Ashok Kumar proved copy of FIR No. 518/15, under section 328/498A/376/406/34 IPC, PS City Gurgaon as Ex DW1/A and its status report as Ex DW1/B, DW2 ASI Narender Singh proved copy of FIR No. 9/15, under section 323/376 IPC, PS DLF Phase-II, Gurgaon as Ex DW2/A, DW3 ASI Kailash proved copy of FIR No. 725/16, under section 376/384/506/509 IPC, PS Sadar, Gurgaon as Ex DW3/A, DW4 ASI Rakesh proved copy of FIR No. 512/16, under section 384/120B IPC, PS DLF Sector-29, Gurgaon as Ex DW4/A.
8. It is contended on behalf of accused that statements of prosecutrix recorded on different stages of investigations & trial are contradictory. Her testimony is wavering which gives benefit to accused. It is submitted that testimony of defense witnesses establish that prosecutrix is habitual in filing false rape cases. Hence, accused is entitled to be acquitted.
Judgment 6 of 20 SC No: 385/17 State Vs. Soubhagya Bajaj
9. On the other hand Ld Addl. PP for State submits that prosecutrix in her statement has categorically alleged her assault by the accused and in view of her truthful testimony accused is liable to be convicted for the offences committed by him.
10. I have heard the rival contentions and have gone through the record.
11. Versions of prosecutrix: After initial complaint, statement of prosecutrix Ex. PW1/C was recorded under Section 164 Cr.P.C. It's loose English translation reads as under :
" I got divorced in 2015. After taking advice of my parents I gave ad in Divorcee Matrimonial of Jeevansathi. There I got acquainted with Soubhagya Bajaj. He sent me a request. He told me that he is already divorced but has not received decree yet. On phone, he proposed me for marriage. I told him not on phone. Then we met twice. On second occasion, I decided to marry him. This pertains to August, 2016. I made my father to talk to him and then I talked to his mother and sister. They agreed for marriage. On 05.09.2016, he called me to his house to show his house. There was nobody at home. It was around Judgment 7 of 20 SC No: 385/17 State Vs. Soubhagya Bajaj 02:30 pm, initially he caught hold of my hand. I gently refused him. Then he started forcing himself upon me. I resisted but he forcibly established sexual relations with me. I told that I would make a complaint against you. He started apologizing. I talked to his sister. Soubhagya told the incident of sex to his sister. His sister told me that they like me and start living with Soubhagya and when decree is obtained, they would marry us. On that day, I came to PG.
In November, 2016 I shifted with him. Before this I was visiting his house from PG and used to stay for many days. For 7-8 months, he kept me properly as a wife on pretext of marrying me. I did not tell my family about the incident of 05.09.2016 and about my shifting. After coming from office he used to beat me and forcibly used to establish sexual relations with me. He used to tell me to drink urine and used to insert his private part in my mouth. He used to insert a small bottle of moisturizer in my private part. He used to say that you are my wife and I should make him happy. My ATM was also with him. He used to demand Rs. 5 lacs from me by saying that he has paid his previous wife and as such, he is in financial constraints.
In last week of November 2016, I saw a message on his mobile and came to know that his divorce case is not filed yet rather his wife has filed a DV Act case against him. When I asked him he told that his wife does not want to divorce him. I told him to talk to my parents otherwise I would make a complaint. He started beating me and later on started apologizing. His sister also talked to me and made me understand that he would marry me and his wife only needs money and he would get divorce. Considering her as elder one, I kept quiet. In December, 2016, I came to know that he has done same with some other girl. I saw his e-mail.
Judgment 8 of 20 SC No: 385/17 State Vs. Soubhagya Bajaj
In first week of May 2017, I came to know that I am pregnant. I told him but Soubhagya refused by saying that he doesn't want a child. He used to say that there is a kit to dissolve pregnancy. On 14.05.2017, he gave me something in milkshake. After drinking it I vomited and had stomach ache. I remained on liquids for 3 days and had stomach ache. On 4 th day, my period started. I told this to Soubhagya, then he admitted that he gave medicine to me deceitfully.
In May, 2017 he was beating me, then I called at 100, police came but Soubhagya after snatching my phone, switched it off. Then he made me to talk to his sister. She stated that it is routine in the families, there was no need to call police and she will come and talk to me.
After two days, in the morning of 19.05.2017, he forcibly established sexual relations with me. I told him that I want surety, either you marry me or do engagement. Then he beat me and stated that he will no marry me. I was using you. I told him that I will make a complaint, then he stated that his wife was not able to send him to jail then what I can do. I went to Gurgaon. He came after me and threatened to kill me. I called at 100. Thereafter, his sister called and kept a meeting at the house of Soubhagya. On 19.05.2017, I came back. In the meeting it was settled that we will reside together. In the night of 19.05.2017, he left me at my PG and stated that from tomorrow we will remain properly and he needs time to cool down. On next day, he blocked my number and of my family members. His relatives also blocked our numbers. Then I made this complaint. "
Judgment 9 of 20 SC No: 385/17 State Vs. Soubhagya Bajaj
12. In her examination-in-chief prosecutrix deposed as under:
I am native of Bhopal. I have studied throughout in Bhopal. I married one Vivek in year July, 2014 but I got divorced from him in May, 2015. I created a profile at Jeevansathi. Com in Divorce section and in my account accused Soubhagya (present in the Court, correctly identified through wooden partition) sent a request. My mother accepted the request as she was managing the profile along with me. Accused conveyed me that although he got divorce but he will get decree of divorce after 3-4 months. I had conversation with accused 3-4 times on phone and then we decided to meet.
August, 2016, I met accused Brewers Street, Gurgaon. Thereafter, we met another two times. We agreed to marry each other. Then accused during this time introduced me to his sister and mother. Accused also talked to my father. His family and my family agreed for our marriage.
On 04.09.2016, accused told me that he will show his house to me and also would take me to his house to meet his parents. At that time, I was residing in Gurgaon in PG and on his insistence, I hired a taxi and went to house of accused. I stayed in house of accused on that night on asking of accused who told me that since 05.09.2016 is his holiday and he will take me around.
On 05.09.2016, in the afternoon at 02:30 pm, we were having coffee at house of accused. Suddenly accused held my hand and asked me to have physical relations with him. Despite my refusal, accused Judgment 10 of 20 SC No: 385/17 State Vs. Soubhagya Bajaj forcibly established physical relations with me by putting pressure that since his neighbors knew that I was with him in the house, he would defame me. After accused established sexual relations with me without my consent, I told him that I would make a complaint to police, then accused apologized for his act and he told me that as he is marrying me then what problem I have with his act. Accused then made me to talk to his sister. Although accused narrated his sister the entire incident but sister of accused despite knowing the guilt of accused, asked me to stay with accused and after accused would get decree of divorce then they would get marry me to the accused.
After this incident, I regularly used to visit house of accused. Accused was residing alone in a house at Jeevan Park. In November, 2016, I shifted to house of accused and started residing there. There accused used to establish physical relations with me and kept me as his wife for about 8 months. During that time accused besides committing vaginal sex with me also used to insert his private part in my mouth. In November, 2016, I saw a message sent by lawyer of accused that wife of accused had filed a case under Domestic Violence Act. After reading this message I asked accused about the matter. Instead of explaining me about the matter he started beating me. Then he told me that he is not divorced and his wife is not intending to give him divorce. Then I told accused to talk to my parents to clarify his position but sister of accused intervened and assured me that accused would marry me.
In December, 2016, I also came to know that accused has some relation with some other girl and he had told the said girl about his status as divorced.
Judgment 11 of 20 SC No: 385/17 State Vs. Soubhagya Bajaj
When I confronted accused about this, he told me that it was his past and I should not bother about it and he is not in relationship with anyone except me.
In first week of May, 2017 I came to know that I am pregnant when I told this fact to accused, accused told me that he does not want the child and ultimately on 14.05.2017, he gave me a milkshake having some substance, after consuming it, I vomited and thereafter, I had pain in my stomach and ultimately I aborted the baby. In May 2017, accused was beating me and then I made a call at 100. Accused apologised for his act and therefore, I did not made a complaint to police. On 19.05.2017, accused forcibly established sexual relations with me and when I asked him to marry me, accused straightway told me that he is residing with me for fun and he is no more interested in marrying me. He told me that even his earlier wife was unable to send him behind bars then what I can do to him. Accused used to demand Rs. 5 lakh from me and used to tell me that he needs the money to give to his wife to get decree of divorce. I immediately left his house and went back to my PG. After going back to PG, I tried to contact accused but accused blocked our numbers. Ultimately on 30.05.2017, I went to PS Dabri and made a complaint against accused........"
13. Allegation against accused of committing forcible sexual intercourse with prosecutrix pertains to 05.09.2016. Prosecutrix alleged in her statements Ex PW1/A & C as well as in her testimony that on 5th September 2016 accused called her to his Judgment 12 of 20 SC No: 385/17 State Vs. Soubhagya Bajaj house and at about 02:30 in afternoon, she was having coffee at house of accused and accused after holding her hand forcibly established physical relations with him. After that when prosecutrix told him that she would make a police complaint then accused apologized and told that after getting divorce he would marry prosecutrix and made her to talk to his sister.
14. However, during her cross-examination prosecutrix in respect of incident dated 05.09.2016 admitted certain other facts as well. Relevant extract of her deposition reads as under:
....... Name of wife of accused is Namita. I met Namita in the evening of 05.09.2016 at about 8.30 pm at Warehouse Cafe, Gurgaon. In the meeting besides me and accused only Namita was there. Namita was asking money from accused and the conversation between them was in respect of some money. I noticed that both were quarreling with each other. There was a CCTV camera in the Cafe. After the incident, accused told me that his wife was greedy and was asking more money from him. After this incident I did not try to contact Namita nor I made any effort to know the status of divorce proceedings between her and accused......
Judgment 13 of 20 SC No: 385/17 State Vs. Soubhagya Bajaj
15. It is evident that prosecutrix in none of her earlier versions stated that she met wife of accused on 05.09.2016. In her statement Ex PW1/C (recorded U/s 164 Cr.P.C) prosecutrix stated that after accused sexually assaulted her on 05.09.2016 she returned to her PG. Prosecutrix doesn't say that she went to any restaurant with accused or had met his wife. For the first time during course of her cross-examination prosecutrix admitted having met wife of accused on 05.09.2016 itself.
16. More so, prosecutrix in her cross-examination admits that she made a complaint Ex PW1/D-1 on 25.09.2016 to Commissioner of Police, Gurgoan against wife of accused. In this complaint prosecutrix mentions that wife of accused had harassed her on 05.09.2016 but she did not allege that accused established physical relations with her on 05.09.2016 against her consent and after doing so, he promised to marry her.
Judgment 14 of 20 SC No: 385/17 State Vs. Soubhagya Bajaj
17. Once it is admitted by prosecutrix that she met wife of accused on the same day of her sexual assault then no doubt is left in inferring that prosecutrix became aware of the marital status of accused on that day itself. As per prosecutrix, besides her and accused only Namita (wife of accused) were there. If all three were seating together the prosecutrix was well aware about conversation between them. Prosecutrix deposed that wife of accused was asking money from accused and conversation between them was in respect of some money. She noticed that accused and his wife were quarreling with each other.
18. From above deposition of prosecutrix it is evident that prosecutrix had first hand information about accused and his marital status. Prosecutrix being herself divorcee was well aware that without being divorced accused cannot marry her. If that was the case then prosecutrix a woman of mature understanding could not be under any misconception.
Judgment 15 of 20 SC No: 385/17 State Vs. Soubhagya Bajaj
19. As per prosecutrix after alleged incident of 05.09.2017, she shifted and started residing with accused.
However, In her cross-examination prosecutrix admits that after this incident she did not try to contact wife of accused nor she made any effort to know status of divorce proceedings between accused and his wife. Prosecutrix was herself a divorced lady. She started residing with accused (a married man). Prosecutrix was acquainted with wife of accused and had every opportunity to find out from his wife whether there was any likelihood of divorce between them or not but prosecutrix made no effort to clarify the position from wife of accused.
20. Prosecutrix further admits that she did not take permission from her parents to reside with accused in his house. PW3 (father of accused) testified that he was aware that prosecutrix was staying in the house of accused but he didn't visit house of accused and accused also never visited their house in Judgment 16 of 20 SC No: 385/17 State Vs. Soubhagya Bajaj Bhopal. PW3 admitted that he never met family of accused nor they had any marriage talks with family of accused. He testified that prosecutrix had word with wife of accused and prosecutrix told him that wife of accused was demanding Rs 20-25 Lakhs from accused to get separated.
21. Testimony of father of prosecutrix indicates that family of accused was never approached by them with a marriage proposal of prosecutrix and accused. It also makes it evident that prosecutrix was well aware that divorce between accused and his wife may or may not happen. Hence, it can be safely concluded that relationship between accused and prosecutrix was not a act which was induced by misconception of a fact.
22. In Gaurav Maggo v. State, Crl. A. No.369/2014, decided by Hon'ble High Court of Delhi on 29.05.2015, it has been held as under :
Judgment 17 of 20 SC No: 385/17 State Vs. Soubhagya Bajaj "There is nothing in her evidence to demonstrate that she was incapable of understanding the nature and implications of the act which she consented to. Her consent for physical relations (if any) was an act of conscious reason. If a fully grown up lady consents to the act of sexual intercourse on a promise to marry and continues to indulge in such activity for long, it is an act of promiscuity on her part and not an act induced by misconception of fact."
23. In Deelip Singh @ Dilip Kumar v. State of Bihar, 2004 (8) Supreme 266, Hon'ble Apex Court held as under:
"In any case, if the rape was committed by the accused much against her will, she would not have volunteered to submit to his wish subsequent to the alleged first incident of rape. She admitted that the accused used to talk to her for hours together and that was within the knowledge of her parents and brother. This statement also casts an element of doubt on her version that she was subjected to sexual intercourse in spite of her resistance. Above all, the version given by her in the Court is at variance with the version set out in the FIR. As already noticed, she categorically stated in the first information report that she 'surrendered before him' in view of his repeated promises to marry. In short, her version about the first incident of rape bristles with improbabilities, improvements and exaggerations."
Judgment 18 of 20 SC No: 385/17 State Vs. Soubhagya Bajaj
24. In present case as well, prosecutrix, a fully grown up lady, continued her intimate relationship with accused despite knowing his marital status. It shows that her relationship was voluntary and not an act induced by misconception of any fact.
25. From above stated discussions it emerges that :
i) Prosecutrix is a divorced woman with a mature understanding.
ii)Testimony of prosecutrix is not found truthful in respect of incident dated 05.09.2016.
iii) Prosecutrix was well aware that accused was a married person from very inception of her relationship with accused.
iv) Prosecutrix was acquainted with wife of accused, despite that she made no effort to find out from her of any likelihood of divorce between her & accused.
v) Family of prosecutrix made no effort to initiate marriage talks between prosecutrix and accused.
vi) Relationship between prosecutrix and accused was not induced by any misconception of fact.
Judgment 19 of 20 SC No: 385/17 State Vs. Soubhagya Bajaj
26. Conclusion: From aforesaid discussions, it is concluded that prosecution has failed to prove charges against accused. Accordingly, accused stands acquitted. His surety is discharged. Bail bond stands canceled. Accused is directed to furnish a personal and surety bond in sum of Rs. 10,000/- under provisions of Section 437-A Cr.P.C which shall remain in force for period of six months.
File be consigned to record room.
Announced in the open court on 16th day of December, 2017.
GAUTAM MANAN Addl. Sessions Judge (SFTC) South-West, Dwarka Courts, Delhi.
Judgment 20 of 20