Delhi District Court
State vs . Gourav on 16 January, 2019
IN THE COURT OF MS. PURVA SAREEN,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE (SOUTH WEST)
DWARKA COURTS, NEW DELHI
State Vs. Gourav
FIR No: 734/17
PS: Uttam Nagar
U/s: 363/506 IPC
Date of Institution of the case : 05.02.2018
Date from which the Judgment reserved : 14.01.2019
Date on which the Judgment pronounced: 16.01.2019
a) Serial No. of the case : 1532/18
b) Date of commission of offence : 11.10.2017
c) Name of complainant : Satyabir Singh Anand
S/o Sh. Ved Prakash
R/o WZ-16A, Om Vihar
Phase-2, Uttam Nagar
New Delhi.
d) Name of accused, his parentage: Gourav
S/o Sh. Vinod Kumar
R/o E-113, Om Vihar,
Phase-5, Uttam Nagar,
New Delhi
e) Offence complained of or proved : u/s 363/506 IPC
f) Plea of accused : Pleaded not guilty
g) Final Order : Acquitted
FIR No.734/17 State vs. Gourav (Judgment) Page 1 of 11
JUDGMENT
1. The accused has been chargesheeted for committing offences punishable under Section 363/506, Indian Penal Code (45 of 1860) (hereinafter referred to as "IPC"). It has been alleged by the prosecution that on 11.10.2017 at about 05:45 pm at WZ-16A, Om Vihar, Phase-II, Uttam Nagar, Delhi accused Gourav and took away minor girl namely 'U' aged 16 years from lawful guardianship of her parents without their consent and threatened her.
2. Complaint was made by the father of the victim and FIR was registered u/s 363 IPC. IO conducted the investigation. After completion of investigation, the present chargesheet was filed for offences punishable under Section 363/506 IPC. Cognizance of offence was taken and accused was summoned to face trial. The copies were supplied under Section 207 Cr.P.C.
3. After hearing the parties, charge for offence u/s 363/506 IPC was framed against accused to which he pleaded not guilty and claimed trial.
4. Prosecution Witnesses were summoned for evidence and four prosecution witnesses were examined to prove the case of the prosecution against the accused persons.
(i) PW-1 Satvir Singh Anand was complainant. He deposed before the court that he had three children namely 'U', Himanshi and Prateek. On 11.10.2017, his daughter 'U' aged about 16 years at that time had gone for FIR No.734/17 State vs. Gourav (Judgment) Page 2 of 11 tuitions at about 05:45 pm. She did not come back. He asked her friends and searched for her in the neighbourhood. Thereafter, he complained to the police late night at about 11:30 pm regarding the missing of his child 'U'.
He proved his complaint as Ex. PW1/A. In his cross-examination, he stated that he had told the police that his daughter had gone for tuition and had not come back. He stated that letter Mark-A was not given in his presence to the SHO and he denied the signature on the said letter. (The letter had clearly stated that the victim had left her house without telling her parents voluntarily and she has also written voluntarily in the letter that no untoward incident took place with her and if she would have told her parents that she wanted to go out they never allowed her.) PW-1 denied the signature as well as the statement of said letter to the police. He thereafter again stated that the letter bore his signature at Point Z. He also stated that he met his daughter in the police station and he was told that she had been recovered from the house of accused Gourav. He denied DD No. 11 A also. (It states that the complainant had returned back to her house on her own and she had also returned back voluntarily.) He denied the suggestion that accused Gaurav had been falsely implicated in this case. He denied the suggestion that accused Gaurav never took away his child 'U' or that there was no talking terms between the accused and 'U'.
(ii) PW-2 was victim 'U'. She deposed before the court that on 11.10.2017, the accused Gourav had blackmailed her that if she did not come to Uttam Nagar West Metro station, he would show her pictures to her parents. She met the accused Gourav at Uttam Nagar West Metro station. Thereafter, he FIR No.734/17 State vs. Gourav (Judgment) Page 3 of 11 took her to PVR Vikaspuri and then took her to the office of his friend whose name was Sonu. Sonu also took her to his house for two days. On the third day Gourav took her to Noida but she could not specify the exact place in Noida where he took her. He made her message her sister from her facebook ID that she was all right and that she would not be coming back home. Thereafter, at about 04:30 pm, he dropped her at Tilak Nagar Metro Station. Thereafter, he told her that she had to go to Moti Nagar Metro Station and call her parents and tell them that she was committing suicide. She came to Janakpuri West Metro Station. Gourav told her to meet him there at Church. Thereafter, she called Gourav from some unknown person's phone and he took her home. The parents of accused Gourav called the police and the mother of Gourav and accused Gourav told her that she had to tell them that Gourav had no role and asked her to name Rohit Aneja. Police came and took her to the police station where her parents came. Thereafter, she was taken home. She proved her statement to the Ld. MM as Ex. PW2/A Witness correctly identified the accused before the court. In her cross-examination, she stated that she met police for the first time on 14.10.2017 at the home of Gourav. She again stated that it was on the night of 13.10.2017. Apart from police persons and herself, family of Gourav was present. She stated that Gourav lives in Om Vihar, Phase-V. She lived in Phase-II. She identified her signature on letter Ex. PW1/DA1. She stated that she had given the statement under pressure on 13.10.2017. She stated that her mother and father had not signed the document in her presence and only she signed in the presence of police inspector. They had given complaint regarding the abovesaid statement FIR No.734/17 State vs. Gourav (Judgment) Page 4 of 11 after coming back from the hospital on the same day. However, the said complaint was not on judicial file. Police asked her about the address of Sonu but she could not tell about address of office of Sonu as she was not aware about the same. Police did not ask her to take them to the office of Sonu. One fake call was made from Moti Nagar. She admitted that Moti Nagar was not mentioned in her statement Ex. PW2/A. There was no specific name of friend mentioned in Statement Ex. PW2/A. The friend's home was in Vikaspuri but she could not tell the exact address. She did not give any proof or record regarding the sending of message from her facebook ID to her sister. She did not take the name of Gourav at Point D to D1 in her statement Ex. PW2/A. She did not take the police to the place where she was made to place a fake call in Moti Nagar. She met Gourav at Janakpuri Church on 13.10.2017. She denied the suggestion that one police person named Vinod Kumar was accompanying Gourav. Rohit Aneja was her friend. She denied the suggestion that she was with Rohit Aneja and Gourav had no role and had been falsely implicated in this case. She denied the suggestion that she had called Gourav for help on 15.10.2017 and that Gourav had met her at Janakpuri Church accompanied by one police official Vinod Kumar. She admitted that she used to go with Rohit Aneja to hukka bar and pubs as he was her friend. She did not meet Rohit Aneja even once between 11.10.2017 and 18.10.2017. She had met Rohit Aneja on 06.10.2017 while going to her tuition. Gourav was not present on 11- 12.10.2017 with her. Gourav was with her on 13.10.2017 in the morning when she was at Himalaya Sagar alongwith Sonu. She had told police about Sonu. She had not told about being with Sonu at Himalaya Sagar in her statement Ex. PW2/A or in her statement u/s 161 Cr.P.C Mark-B. She FIR No.734/17 State vs. Gourav (Judgment) Page 5 of 11 denied the suggestion that she was with her friend Rohit Aneja and had accepted her fault in front of her parents and that Gourav had been falsely implicated in this case. The letter Ex. PW1/DA1 was written by her in the police station itself before going to her home and meeting her parents. She denied the suggestion that she had given a contradictory statement with a view to falsely implicate accused Gourav.
(iii) PW-3 was ASI Naresh Kumar. He deposed before the court that on 11.12.2017, investigation of the present case was marked to him. After perusing the case file in which the missing girl had been traced, medical was conducted and statement u/s 164 Cr.P.C was recorded. Thereafter, he contacted the accused Gourav after which accused appeared at police station. He proved disclosure statement of accused as Ex. PW3/A. He further stated that as there were allegations against Gourav in statement u/s 164 Cr.P.C, he prepared chargesheet u/s 363/506 IPC and filed the same befoe the court for judicial verdict.
Witness correctly identified the accused before the court. In his cross-examination, he stated that on 12.10.2017, one intimation was received at police station by the father of the victim. He could not say whether accused Gourav was coming to the police station during the period when complaint was given and before the tracing of the victim. As per record, he stated that girl was traced at Vikaspuri Church. He admitted that accused stated in his disclosure statement that victim will come at Vikaspuri Church and from there, police could recover the victim. He denied the suggestion that a false case had been lodged against the accused or that nothing incriminating was found against the accused.
FIR No.734/17 State vs. Gourav (Judgment) Page 6 of 11(iv) PW-4 was ASI Vinod Kumar. He deposed before the court that on 12.10.2017, he was handed over the copy of FIR and the rukka of the present case for investigation. He perused the case file. Thereafter, he made inquiry from ASI Jeet Ram. He recorded his statement. Wireless message was sent regarding the missing girl. On 13.10.2017, he obtained the birth certificate of the missing girl from Angel Public School. He obtained the 161 Cr.P.C statement of Principal Neelam Sharma. On 14.10.2017, he sent for publication of the missing notice to various agencies. On the night of 14.10.2017, the girl was found and thereafter, her medical was conducted in DDU hospital. The girl herself gave the statement that she had gone for outing on her own will and nothing wrong had happened and if she would have told her mother or father they would not have not let her go. Thereafter, DD no. 7A was recorded regarding the finding of a girl. He gave information to the missing persons squad. The girl was handed over to her mother and father. On 16.10.2017, the girl was presented for statement u/s 164 Cr.P.C before the Ld. MM. On 28.10.2017, the investigation was handed over to the second IO.
In his cross-examination, he admitted that victim made a written statement in front of her regarding going for outing with her sweet will. He admitted that when the victim had gone for outing without informing her parents, the accused used to come at PS when he was called for joining the investigation. The victim came to the PS alongwith her parents to make the statement. From 12.10.2017 to 14.10.2017 the accused came to the PS for 2-3 times for joining the investigation. The victim made the statement that she went for outing to one of her friend with her sweet will and did not FIR No.734/17 State vs. Gourav (Judgment) Page 7 of 11 point out the present accused with whom she went for outing from the period of 12.10.2017 to 14.10.2017. The statement made before SHO PS Uttam Nagar was recorded on 14.10.2017 and thereafter she went with her parents at her home and on 16.10.2017 the statement of the victim was recorded u/s 164 Cr.P.C.
5. Thereafter, prosecution evidence was closed.
6. Statements of accused persons were recorded U/s 313 Cr. P.C, wherein all incriminating circumstances and evidence was put to accused. Accused denied all the allegations against him and pleaded false implication. Accused did not prefer to lead defence evidence. Thereafter, final arguments were advanced by Ld. APP and Ld. Defence counsel.
7. It was argued by Ld. APP for the State that there is sufficient evidence on record to hold the accused guilty and hence, he should be convicted.
8. On the other hand, it has been argued by Ld. Counsel for accused that there is a contradiction with respect to how and where the victim/prosecutrix 'U' was found. Whereas the father says that she was recovered from the house of Gourav and was brought to the PS from where they accompanied her back to the house. The IO PW-4 ASI Vinod Kumar stated that the victim/prosecutrix 'U' came to the police station with her parents to make the statement. He also stated that she made the statement that she had gone for outing with one of her friend with her own sweet will FIR No.734/17 State vs. Gourav (Judgment) Page 8 of 11 and did not point out the name of the accused Gourav. The DD No. 11A is also contradicting to the extent that the same was recorded on 15.10.2017 when the parents of the complainant brought her to the police station in order to inform the police that the search of the girl should be closed as she had returned on her own to the house. Ex. PW1/DA1 which is a letter given by the victim/prosecutrix 'U' to the SHO and which is also Mark-A also shows that the victim/prosecutrix 'U' had left the house on her own and also returned to the house on her own. It is further argued by ld. Counsel for accused that it is stated by IO ASI Vinod Kumar that through out the period during which the victim/prosecutrix 'U' was missing from her house i.e. from 12.10.2017 to 14.10.2017, the accused came to the police station 2-3 times for joining the investigation. Counsel submits that a person who is an accused in an offence u/s 363 IPC and has prosecutrix in his custody would never himself visit the police station or join the investigation. The IO also stated in his cross-examination that victim/prosecutrix 'U' made the statement before him that she had gone with one of her friend for an outing and never pointed the accused with whom she went for outing and neither she named accused Gourav before the police. It was only during the statement of complainant U/s 164 Cr.P.C was recorded when she named the accused Gourav for the first time. The perusal of the MLC also shows that girl/victim/prosecutrix 'U' specifically named one Rohit her neighour and stated that she had left her home on 11.10.2017 at 04:30 pm to meet her friend Rohit and they had gone to Gurgaon together where they were together for two hours in the park after which Rohit went somewhere leaving her alone in the park, she stayed there for two days. At the time of MLC also although she named Rohit, she never named accused Gourav. It is further FIR No.734/17 State vs. Gourav (Judgment) Page 9 of 11 argued that offence has not been proved and accused is liable to be acquitted
9. After hearing the arguments and going through the record, I have come to the following observations:
As per Section 363 IPC- "whoever kidnaps any person from [India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
Nothing has come on record except the statement of father of victim/prosecutrix 'U' that accused took away his daughter. He is also a hearsay witness. As far as recovery is concerned, same is also doubtful whether she was recovered from the house of accused or she came back on her own. The victim/prosecutrix 'U' changed her version after two days of her recovery and as she was with her parents during those two intervening days, which shoes that there was fully possibility of tutoring of the victim/prosecutrix 'U' as on one hand she has not named Gourav at all in her first statement, in her MLC or in the DD entry and the name of Gourav suddenly comes up in the statement u/s 164 Cr.P.C. There is clear doubt in the authenticity and veracity of the statement of the complainant and in a criminal case the benefit of doubt always goes in favour of accused.
10. As per Section 506 IPC - "Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
FIR No.734/17 State vs. Gourav (Judgment) Page 10 of 11No element of any alarm is seen. Both the public witnesses have nowhere stated that accused ever intimidated or threatened them at any point of time. She has only stated about the threat in her Statement u/s 164 Cr.P.C but she has stated nothing about any threat in her statement before the court.
11. In view of the above discussion, this court has no hesitation to hold that prosecution has failed to bring home the guilt of accused Gourav U/s 363/506 IPC. As such, accused Gourav stands acquitted of charges U/s 363/506 IPC. Bail bond & Surety bond discharged. Endorsement, if any stands cancelled.
Announced in the open court on 16th January, 2019 (PURVA SAREEN) Additional Chief Metropolitan Magistrate Dwarka Courts: New Delhi Digitally signed by PURVA PURVA SAREEN SAREEN Date:
2019.01.18 15:40:04 +0530 FIR No.734/17 State vs. Gourav (Judgment) Page 11 of 11