Delhi District Court
State vs . Avinash Tiwari @ Babloo on 14 February, 2014
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII
(NORTHWEST): ROHINI COURTS: DELHI
Session Case No. 175/2013
Unique Case ID No.: 02404R0237982012
State Vs. Avinash Tiwari @ Babloo
S/o Girish Chand
R/o Village Kadipur,
PS Manjan Pur,
Distt. Kaushambi, UP
(Convicted)
FIR No.: 62/2011
Police Station: North Rohini
Under Section: 363/366/506 IPC & 9 of Child Marriage Act
Date of committal to session court: 30.9.2013
Date on which orders were reserved: 14.2.2014
Date on which Judgment pronounced: 14.2.2014
JUDGMENT:
(1) As per allegations, on 27.3.2011 between 7:00 PM to 8:00 PM at village Naharpur, Sector7, Rohini, Delhi the accused Avinash Tiwari @ Babloo kidnapped the prosecutrix 'S' (name of the prosecutrix is withheld as this is a case under Section 363 IPC) aged about 15 years from the lawful guardianship of her parents with the intent that she may be forced and seduced to marriage and also criminally intimidated her to kill her parents. It has also St. Vs. Avinar Tiwari, FIR No. 62/2011, PS North Rohini Page No. 1 been alleged that the accused being above 21 years of age contacted the prosecutrix 'S' who was a minor at that time for marriage. BRIEF FACTS/ CASE OF THE PROSECUTION:
(2) The case of the prosecution is that on 28.03.2011 at about 12.15 PM one Kapil Dev came to the Police Station North Rohini and lodged a missing report with ASI Dharambir. In his statement Kapil Dev informed ASI Dharambir that his daughter 'S' aged 15 years is missing and he was informed by her younger daughter that one Avinash @ Babloo who is residing in the same house on rent, had taken away his daughter 'S'. On the basis of the statement of Kapil Dev the present case was registered and efforts were made to trace out the prosecutrix and the accused Avinash but they could not be traced. During investigations on 5.11.2011 the complainant Kapil Dev received a call from Allahabad and he came to know that his daughter was in Allahabad on which he along with ASI Anil Kumar, HC Ashok Kumar and Ct. Satyanarain went to Allahabad where they reached on 06.11.2011 and on 07.11.2011 they all reached C.O.D. Gate, Naini in Ram Sagar Colony where the prosecutrix 'S' was found standing but the accused was not there. The prosecutrix was identified by her father and thereafter they returned to Delhi.
The medical examination of the prosecutrix was got conducted from BSA Hospital during which she informed the doctor that she had voluntarily gone with the accused Avinash Tiwari and refused for her internal examination. On 09.11.2011 the statement of the prosecutrix 'S' was recorded under Section 164 St. Vs. Avinar Tiwari, FIR No. 62/2011, PS North Rohini Page No. 2 Cr.P.C. by the Ld. MM. However, the accused Avinash @ Babloo could not be arrested and on 8.2.2012 he was declared a Proclaimed Offender and the charge sheet was filed as such.
(3) On 27.07.2013 the accused Avinash Tiwari @ Babloo was arrested by the members of Special Staff U/s 41.1(c) Cr.P.C. and information was sent to the Investigating Officer of the present case. On 30.07.2013 when the accused Avinash @ Babloo was produced in the Rohini Court Complex the Investigating Officer moved an application before the court concerned and after obtaining permission of the Ld. MM he arrested the accused and recorded his disclosure statement. After completion of investigations supplementary charge sheet was filed in the Court against the accused Avinash Tiwari @ Babloo.
CHARGES:
(4) Charges under Sections 363, 366, 506 IPC and Section 4 of Hindu Marriage Restraint Act were settled against the accused to which he pleaded not guilty and claimed trial.
EVIDENCE:
(5) In order to prove its case the prosecution has examined as many as Sixteen witnesses as under:
Complainant/ victim/ public witnesses:
(6) PW10 Sh. Kapil Dev Yadav is the father of the prosecutrix who St. Vs. Avinar Tiwari, FIR No. 62/2011, PS North Rohini Page No. 3 has deposed that he is doing a service in cable network in Delhi and has four children and the prosecutrix 'S' is his eldest daughter. According to him in the year 2011 the prosecutrix 'S' was a student of VIIth class in Government Sarvodaya Senior Secondary School, Sector - 7, Rohini, Delhi. The witness has further deposed that on 27.03.2011 at about 07:00 PM he along with his wife went to purchase medicine from a doctor in Naharpur and all his children were at home at that time and when at about 08:00 PM when they returned, the prosecutrix 'S' was not at home. Witness has also deposed that he inquired from his children about the prosecutrix 'S' on which his younger daughter Suman told him that the accused Avinash @ Babloo had come to their house who was having a motorcycle and he took his daughter 'S'. According to the witness he thereafter searched for his daughter in the vicinity and then went to Police Station and reported the matter to the police and his statement was recorded which is Ex.PW10/A. Witness has further testified that after about five months his daughter was recovered from Allahabad and he along with police official went to Allahabad where his daughter was living with accused Babloo who were residing in a rented room. According to the witness, at that time accused Babloo was not present at the room and only 'S' was present.
Witness has further deposed that recovery memo of his daughter was prepared vide Ex.PW3/A after which from Allahabad they returned to Delhi and thereafter they went to Police Station from where after taking the custody of his daughter he came to his house. He has also deposed that after about four months accused Babloo returned to Naharpur from Allahabad and started St. Vs. Avinar Tiwari, FIR No. 62/2011, PS North Rohini Page No. 4 living in village Naharpur in a rented premises and thereafter accused Babloo again started roaming near their residence on which he again gave the complaint to the police that accused Babloo was residing in Naharpur after which he was apprehended and was arrested in the present case. (7) With the permission of the Court, the Ld. Addl. PP crossexamined the witness wherein the witness has admitted that Rahul (since deceased) and accused Babloo were residing in the same premises in which he was residing with his family member. He has also admitted that Suman had told him that the prosecutrix 'S' was called by Rahul and accused Babloo was standing with a motorcycle in the gali. According to the witness the prosecutrix 'S' told Suman that she was going to purchase some article from market as told to him by Suman and he had disclosed the description of the prosecutrix 'S' in his statement Ex.PW10/A and also disclosed about her wearing. Witness has further admitted that initially Rahul had enticed his daughter 'S' with the intention to kidnap her and thereafter the prosecutrix 'S' was further kidnapped by the accused Babloo on his motorcycle. Witness has also deposed that he had also given the birth certificate of the prosecutrix 'S' to Investigating Officer which was taken into possession vide memo Ex.PW10/B. The witness has explained that due to passage of time he had forgotten these facts.
(8) In his cross examination by Ld. Defence counsel witness has deposed that he received a telephone call from Allahabad from unknown person who told him whether he was interested to bring his daughter back St. Vs. Avinar Tiwari, FIR No. 62/2011, PS North Rohini Page No. 5 from Allahabad to Delhi on which he replied in affirmative after which the said person told him to come to Allahabad, he will meet them at Railway Station, Allahabad and will accompany the place where the prosecutrix 'S' was living. Witness has further deposed that he cannot tell the exact area of Allahabad where his daughter was residing nor is he able to tell the exact address of Allahabad i.e. the place of recovery of his daughter. According to him at the time of recovery apart from his daughter no one was present. He has further deposed that police official namely Ct. Ashok and Ct. Anil accompanied him to Allahabad and both were in civil dress. Witness has testified that later on they came to know the person who had informed him about the prosecutrix 'S' in Allahabad was the uncle of accused. He is unable to tell the date and day on which they reached Allahabad and states that they went to Allahabad by train and returned from Allahabad on next day. Witness has admitted that when Rahul came to their house for calling the prosecutrix 'S', he (witness) was not present at that time and that the prosecutrix 'S' did not leave the house in his presence. According to the witness, his statement was recorded by the police later on and he did not sign the same and initially his statement was recorded in Delhi. The witness has also deposed that the Investigating Officer did not record his statement after returning from Allahabad. He has admitted that his daughter was taken away from Rahul and has voluntarily explained that Rahul is no more. Witness has denied the suggestion that accused Babloo has been falsely implicated in the present case.
St. Vs. Avinar Tiwari, FIR No. 62/2011, PS North Rohini Page No. 6 (9) PW11 Sh. Om Parkash Gupta has deposed that he is residing at Jawahar ka makan, Village Naharpur, Sector 7, Rohini, Delhi along with his family comprising of his two sons and he is an original resident of district Hardoi, UP. According to the witness on 27.03.2013 his son Rahul who was aged around 13 years had left the house without information and went some where and on the same day one girl i.e. the prosecutrix 'S' D/o Kapil Dev who was residing in the neighborhood was also missing from her house and her father Kapil Dev was a suspicion on his son and lodged a complaint that it was his son Rahul who was instrumental in kidnapping of prosecutrix 'S'. the witness has further deposed that on the same day in the evening his son Rahul made a telephone call to him that he had gone to native village Hardoi and reached safely after which he (witness) called him back and then produced him before police and his son told the police that he had not kidnapped the prosecutrix 'S' and knew nothing about the case. Witness has also deposed that his son Rahul had now expired about twothree months ago in the native village and his death certificate is Ex.PW11/A. (10) With the permission of the Court leading questions were put by Ld. Addl. PP for the State wherein the witness has admitted that the police had interrogated his son Rahul but has denied the suggestion that his son had told the police in his presence that Avinash who was also a tenant in the same house was having a close association with the prosecutrix 'S' and he had often seen them together talking to each other. Witness has denied the suggestion that Rahul has also told that he had seen Avinash @ Babloo and prosecutrix St. Vs. Avinar Tiwari, FIR No. 62/2011, PS North Rohini Page No. 7 'S' going somewhere on a motorcycle and therefore apprehending that he may be got involved in the said affair, out of fear he had run away to the native village.
(11) This witness was not cross examined by Ld. Defence counsel despite opportunity granted in this regard.
(12) PW12 Mrs. Bimla is the mother of the prosecutrix. She has deposed that she is residing at House No. 17, Village Naharpur, Sector 7, Rohini, Delhi along with her family comprising of four children i.e. three daughters and one son and prosecutrix 'S' is her eldest daughter who is aged around 28 years. According to the witness she had accompanied her daughter Sonia to Dr. Baba Saheb Ambedkar Hospital for her medical examination and her internal examination was not got conducted. Witness has further deposed that she only signed her medical record and she had also come to the court with her when her statement was recorded. According to the witness, her daughter was handed over to her vide memo Ex.PW12/A. (13) In her cross examination by Ld. Defence counsel, witness has deposed that she cannot read or write and she is totally illiterate and has voluntarily explained that she can only sign in Hindi. Witness has denied the suggestion that when her daughter was recovered and she met her, she repeatedly told her in the hospital and also in the court that she had gone of her own and that is the reason she had refused for her internal examination in the hospital. Witness has denied the suggestion that she is deliberately concealing this fact.
St. Vs. Avinar Tiwari, FIR No. 62/2011, PS North Rohini Page No. 8 (14) The prosecutrix 'S' has been examined as PW14 in Camera Proceedings. This Court has observed that the date of birth mentioned in the school certificate is 12.12.1995 and the prosecutrix has now become a major on 13.12.2013 and is more than 18 years of age.
(15) She has deposed that she is residing along with her parents, two other sisters, one brother and they are four brother and sisters and she is the eldest one. According to the witness at the time of the incident she was studying in class 7th and was about to go in class 8th but presently she has dropped her studies. Witness has further deposed that the house where they were previously residing i.e. house No. 17, village Naharpur, Sector 7 Rohini was a tenanted house where they were residing on rent in one room and they were residing on the first floor, whereas the accused Avinash was residing on the ground floor. She has also deposed that the accused Avinash started following her to the school and forcibly took her to Allahabad where he took one room on rent and they stayed there for about one month, exact time she does not recollect. The witness has further deposed that the accused used to drive a vehicle in Allahabad while she used to remain in the room. According to the witness Delhi Police then came to Allahabad and got her recovered from the room and then she came back to Delhi and she was taken to the hospital where her medical examination was conducted. (16) On a specific Court Question the witness has deposed that she did not get her internal examination conducted. Witness has further deposed that she then returned home from the hospital and on the next day she went to the St. Vs. Avinar Tiwari, FIR No. 62/2011, PS North Rohini Page No. 9 court from her house where her statement was recorded by the Ld. MM which statement is Ex.PW14/A. According to the witness, one Rahul was also a resident of the same premises where she was residing as a tenant and she did not know him much but it was Rahul who was acquainted with and known to the accused Avinash and she did not know him much.
(17) Leading questions were put to the witness by the Ld. Addl. PP for the state wherein she has admitted that in her statement to the Ld. MM which is Ex.PW14/A she had informed him that she was known to Avinash @ Babloo for the last one year and on 27.03.2011 he had told her that he wanted to marry her but she refused. According to the witness, she had also told the Ld. MM that on her refusal the accused threatened to kill her parents on which she got scared and accompanied the accused Avinash @ Babloo. Witness has also deposed that she also told the Investigating Officer that Rahul who was aged 13 years was also residing on the ground floor as a tenant and that on that day i.e. 27.03.2011 she saw the accused Avinash @ Babloo standing outside in a gali on a bike while Rahul was standing on the ground floor and when she went outside the accused Avinash came behind her and forcibly lifted her on the bike and took her away while Rahul followed them on foot till the bus stand. According to the prosecutrix, she also told the police that the accused Avinash then handed over his bike to Rahul and took her to the railway station and from there he took her to Haridwar where they stayed with his chacha and chachi for one day. Witness has further deposed that she further told the Ld. MM that thereafter they went to Allahabad, UP St. Vs. Avinar Tiwari, FIR No. 62/2011, PS North Rohini Page No. 10 and at Allahabad the accused Avinash @ Babloo took her to the court and got married to her. She has also deposed that she had told the Ld. MM that the accused Avinash @ Babloo was a driver and used to take his vehicle to various places like Gorakhpur, Mirzapur, Gondabasti, Banaras, Jaunpur etc. (18) In his cross examination by the Ld. Defence counsel, witness has deposed that she did not tell any of her friend or teachers in the school that the accused Avinash was following her to various places and has voluntarily stated that she had told her mother that Avinash was following her. According to the witness, her mother did not made any complaints to the landlord regarding the conduct of the Avinash and also did not confront Avinash at any point of time except on one occasion. Witness has admitted that she used to frequently talk to the accused Avinash and it is then that her mother came to know about it and once she saw him in the market she gave him a slap. Witness has also deposed that nobody collected when this incident took place in the market and her parents had also lodged complaint with regard to the harassment of Avinash with her but she is unable to tell the date. She has admitted that there was no police complaint and she had wrongly stated about the same. Witness has further denied the suggestion that her parents on coming to know of their affair had objected to her relationship with the accused on which she eloped with him and has voluntarily explained that he forcibly took her. Witness has further deposed that when she was put on the motorcycle only the accused Avinash was driving the same, there was no other person. She has stated that she also raised hue and cry but no public St. Vs. Avinar Tiwari, FIR No. 62/2011, PS North Rohini Page No. 11 person noticed the same and has tried to explain by saying that this was because the accused was driving the bike at a fast speed. Witness has also admitted that the area where she is residing and the incident took place is a thickly populated area and there is also a shop in the vicinity. According to him, they stayed at the bus stand for about half an hour one hour. Witness has also deposed that she had also raised a hue and cry at the bus stand and during this ½ 1 hour time she had asked for help to fourfive persons and they had gone to New Delhi railway station from the bus stand Naharpur. Witness has also admitted that New Delhi Railway Station is at a distance of about 35 Km from Naharpur Bus Stand. He has also deposed that the accused took her to New Delhi railway station in a bike which he parked in the railway station. Witness has admitted that earlier in her examination in chief and also in her statement to the Investigating Officer she had stated that the accused Avinash had given the bike to Rahul at Naharpur Bus stand which fact she have also deposed in her chief. According to the witness what she is now stating in her cross examination that accused took her to Railway station on bike and parked the bike over there is correct.
(19) A specific Court Question was put to the witness as to why she deposed to the effect in her examination in chief that the accused had handed over the bike at bus stand, on which the prosecutrix replied that she is sorry for the same. This Court has observed that the demeanor of the witness showed that she was repeatedly speaking false facts despite being told to speak the truth and appears to be under tutoring.
St. Vs. Avinar Tiwari, FIR No. 62/2011, PS North Rohini Page No. 12 (20) Witness has denied the suggestion that it is on the tutoring of her father and family members that in order to implicate Rahul (deceased) that she deliberately made this false statement. The witness has also deposed that she did not tell the parking attendants at the railway station that the accused was taking her forcibly with him and has voluntarily explained that he had threatened her. According to the witness she also did not tell any officials of the Delhi police present in the railway station or the railway police or any of the passenger or ticket checker in the train that the accused was taking her with him forcibly and has voluntarily explained that she was scared. It was observed by this Court that the witness appears to be confident and shows no sign of any fear or pressure even now.
(21) Witness has further deposed that she also did not tell the police either at Haridwar or at Allahabad railway station and she also did not tell any other tenant of the house where they stayed at Allahabad or the land lord that the accused had taken her forcibly from Delhi and has voluntarily explained that the accused had threatened her. She is unable to tell whether she had signed any documents regarding marriage in the court or not but has admitted that she had met large number of lawyers. Witness has further deposed that they had also appeared before a Judge at the time when the accused took her to Allahabad courts and has voluntarily explained that she did not tell any lawyer or Judge that the accused had forcibly took her from Delhi and she is not willing for the marriage. Witness has admitted that in the house where she stayed in the Allahabad the toilet was on the ground floor and has St. Vs. Avinar Tiwari, FIR No. 62/2011, PS North Rohini Page No. 13 voluntarily explained that they were staying on the second floor. She has admitted that during the period the accused used to go to Banaras, Gorakhpur, Mirjzapur, Jaunpur etc. she used to remain home alone. Witness has also admitted that the accused used to go out together for twothree days at a time and that the accused was maintaining a mobile phone. She has denied the suggestion that she was also using this mobile phone or that she had made a call to her parents from this mobile phone. She has admitted that the accused had never locked her in her room when he used to go out Banaras, Gorakhpur, Mirjzapur, Jaunpur etc. and even during this period she neither approached to local police nor sought any help from other tenants of the same premises nor made any efforts to call her parents. Witness has also deposed that for this period of one month, she did not cook any food. In fact she has stated that she never cooked any food at any point of time and sometime she used to eat Maggie and she used to remain hungry most of the time because food was not cooked. According to her at the time when she was recovered by Delhi police she was not sick. She states that she had also informed the doctor at BSA Hospital that the accused had kept her hungry and she was feeling weak. Witness has denied the suggestion that she was hale and hearty when she was recovered and she had never informed the doctor about any medical or physical problem and now she is creating these stories only asking of her parents and their tutoring. Witness has denied the suggestion that when the Delhi Police recovered her she was reluctant to come with them and told them she of her own had come with the accused and did not want to go with them St. Vs. Avinar Tiwari, FIR No. 62/2011, PS North Rohini Page No. 14 in Delhi. She has admitted that before her statement U/s 164 Cr.P.C. was recorded she was handed over to her parents by the police and the statement which she made to Ld. MM was on the next day. Witness has denied the suggestion that during this time when she was handed over to her parents she was threatened and tutored by them to make the statement Ex.PW14/A and to implicate the accused Avinash in the same. She has further denied the suggestion that it was on the advise of her family and other seniors that she had falsely implicated Avinash @ Babloo and also Rahul at a later stage only to save her family's honour and reputation. She has denied that since she had voluntarily gone with the accused who had never made any physical relation with her during the period she stayed with him, she had refused for her internal examination in BSA Hospital. She has admitted that when she was recovered by Delhi police, she was wearing a saree. According to the witness, when she left her house she was wearing a frock type salwar suit and she was not carrying any clothes. She has admitted that during this period of one month she used to take bath regularly and change the clothes. According to the witness it is the accused who purchased the clothes for her and she was having only one saree and there were two sets of churidar and salwar suits. She has denied the suggestion that she had done her shopping herself. The witness has admitted that when she went to the court she was wearing Saree and has voluntarily explained that it was the accused who had asked her to wear a Saree. Witness has admitted that Ex.PW13/C bears her signatures at point A and signatures of accused Avinash at point B and also bear her St. Vs. Avinar Tiwari, FIR No. 62/2011, PS North Rohini Page No. 15 photograph at point encircled X. Witness has also admitted that she had appeared before the Registrar but she did not inform him about any kind of pressure. She has also admitted that the said documents bear the signatures of her father Kapil Kumar at point C and has voluntarily explained that it was the uncle of the accused who had signed in place of her father but she did not tell the Ld. Court about the same. She has denied the suggestion that before going to the court, they had also gone to the temple or that even the priest of the temple had accompanied them to the office of the registrar of marriage and had signed as a witness. According to the witness she had not given any affidavit in support of her age, declaring that she was 20 years of age at the time of her marriage. Witness has denied the suggestion that at that time she had provided her details of residence as village and post office Piperaich Gorakhpur and given her address as 52, Mori Daraganj, Allahabad. Witness has further denied the suggestion that they had never gone to the family of chacha and chachi of Avinash at Haridwar and it is on advise of her family that she is trying to implicate the entire family of Avinash in the present case. Police/ official witnesses:
(22) PW1 Retd. SI Dharampal is a formal witness being the Duty Officer who has been examined by way of affidavit which is Ex.PW1/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved the DD No. 5A copy of which is Ex.PW1/A, copy of FIR which is Ex.PW1/B and his endorsement on rukka which is Ex.PW1/C. This witness was not cross St. Vs. Avinar Tiwari, FIR No. 62/2011, PS North Rohini Page No. 16 examined by Ld. Defence counsel despite opportunity granted. (23) PW2 W/Ct. Pankaj is also a formal witness who has been examined by way of affidavit which is Ex.PW2/1 (as per the provisions of Section 296 Cr.P.C.) wherein she has proved that on 8.11.2011 she took the prosecutrix to BSA Hospital and got her medical examination conducted there after which the prosecutrix was produced before the Ld. MM for recording the statement under Section 164 Cr.P.C. which was fixed for 9.11.2011. (24) In her cross examination by Ld. Defence counsel witness has deposed that only the mother of the prosecutrix was with her when she was taken to the hospital for her medical checkup. Witness has admitted that the prosecutrix was repeatedly telling her mother and had also told them that she had gone with the accused of her own. Witness has also admitted that the mother of the prosecutrix had refused for her internal examination and on inquiry by the doctor, the prosecutrix did not confirm rape and had informed that nothing had happened with her during the time she stayed with the accused.
(25) PW3 HC Ashok Kumar is also a formal witness who has been examined by way of affidavit which is Ex.PW3/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved the recovery memo of the prosecutrix which is Ex.PW3/A. (26) In his cross examination by Ld. Defence counsel, witness has deposed that when the prosecutrix was recovered she was standing on the St. Vs. Avinar Tiwari, FIR No. 62/2011, PS North Rohini Page No. 17 gate of the house and when she was recovered she appeared to be married and was wearing a saree, chura and Sindoor. Witness has admitted that she was repeatedly telling them that she of her own had come with the accused Avinash and had even married him. According to the witness, the Investigating Officer had interrogated the prosecutrix as to why she had eloped but since her father was also present with them she did not respond and has voluntarily explained that she only told that she had come of her own. (27) PW4 W/ASI Krishna is also a formal witness who has been examined by way of affidavit which is Ex.PW4/1 (as per the provisions of Section 296 Cr.P.C.) wherein she has proved that on 8.11.2011 she along with W/Ct. Pankaj took the prosecutrix to BSA Hospital and got her medical examination conducted there after which the prosecutrix was produced before the Ld. MM for recording the statement under Section 164 Cr.P.C. which was fixed for 9.11.2011.
(28) In her cross examination by Ld. Defence counsel witness has deposed that only the mother of the prosecutrix was with her when she was taken to the hospital for her medical checkup and in her presence she did not hear telling the prosecutrix to her mother that she had voluntarily gone with the accused. She has also admitted that the mother of the prosecutrix had refused for her internal examination and has voluntarily explained that first the prosecutrix refused and then her mother. Witness has also admitted that on inquiry from the doctor, the prosecutrix did not confirm rape St. Vs. Avinar Tiwari, FIR No. 62/2011, PS North Rohini Page No. 18 and had informed that nothing had happened with her during the time she stayed with the accused.
(29) PW5 Ct. Venkatesh is also a formal witness being the DD Writer who has been examined by way of affidavit which is Ex.PW5/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has relied upon DD No. 57B dated 27.07.2013 copy of which is Ex.PW5/A. He has not been cross examined by Ld. Defence counsel despite opportunity granted in this regard.
(30) PW6 Ct. Bijender, PW7Ct. Ram Niwas and PW8 HC Devender are all members of Special Staff (Outer District) who have proved the apprehension and arrest of the accused on 27.7.2013. They have been examined by way of affidavits which are Ex.PW6/1, Ex.PW7/1 and Ex.PW8/1 respectively (as per the provisions of Section 296 Cr.P.C.) wherein they have proved the DD No. 9 copy of which is Ex.PW6/A, arrest memo of accused Avinash which is Ex.PW6/B and his personal search memo was taken vide Ex.PW6/C. They have correctly identified the accused Avinash in the Court.
(31) In their cross examination by the Ld. Defence Counsel, the witnesses have deposed that they made a combined departure entry while leaving the Police Station. The witnesses have admitted that as per the departmental rules on apprehension of one Proclaimed Offender they get reward of Rs.500/ and on apprehension of 75 Proclaimed Offenders they get a one rank promotion. They are not aware if the accused is also resident of St. Vs. Avinar Tiwari, FIR No. 62/2011, PS North Rohini Page No. 19 house No. 272, Village Naharpur, Delhi. They have denied the suggestion that the accused was always available at his house and deliberately got declared a Proclaimed Offender or that the accused was picked up from Sector 7, Naharpur near the Saini Chopal at 8PM on 27.07.2013 and his arrest has wrongly shown from B Block, Mangolpuri only to complete record of his Proclaimed Offender.
(32) PW9 Sh. Vikas Rana Assistant Teacher at Government Sarvoday CoEd, Sr. Secondary School, Sector7, Rohini has brought the summoned record of date of birth of the prosecutrix 'S' D/o Sh. Kapildev Yadav who had took the admission in their school in sixth class on 26.03.2009. According to him as per the record, the date of birth of the prosecutrix 'S' is 12.12.1995 and she took admission in their school on the basis of School Leaving Certificate.
He has placed on record the attested copy of School Leaving Certificate which is Ex.PW9/A, attested copy of admission and withdrawal register of their school which is Ex.PW9/B where the admission number of the prosecutrix 'S' is at Sl. No. 6272 and the certificate issued by Principal mentioning the date as per record 12.12.1995 is Ex.PW9/C. (33) In his cross examination by Ld. Defence counsel, witness has deposed that the prosecutrix 'S' had left their school on 30.07.2011. He is unable to tell since long she was absenting from school and states that when she left, she was student of class VIII A. (34) PW13 ASI Prem Pal has deposed that on 13.04.2011 he was posted in Police Station North Rohini and on that day investigation of this case St. Vs. Avinar Tiwari, FIR No. 62/2011, PS North Rohini Page No. 20 was assigned to him and during investigation, he gone through file and tried his every best to arrest the accused but accused could not traceable. According to the witness, he got issued NBW of accused Avinash Tiwari @ Babloo after which the accused was got declared Proclaimed Offender. He has testified that during his investigations he collected the birth certificate of prosecutrix 'S' which was taken into possession vide memo Ex.PW10/B which was given by Kapil father of prosecutrix and the said certificate is Ex.PW13/A. Witness has further deposed that he also took into possession a marriage certificate of Avinash @ Babloo and prosecutrix 'S' vide memo Ex.PW13/B which he had collected through HC Nahar Singh from Allahabad, which marriage certificate is Ex.PW13/C. Witness has also deposed that till the time investigations remained with him, accused Babloo could not be apprehended and having no option he filed charge sheet. According to the witness, the subsequent Investigating Officer ASI Anil Tiwari who recovered the prosecutrix, produced the prosecutrix before the concerned MM for recording of statement U/s 164 Cr.P.C. carbon copy of the proceedings are on record and are collectively Ex.PW13/D. This witness was not cross examined by Ld. Defence counsel despite opportunity granted in this regard.
(35) PW15 SI Dharamvir is the Investigating Officer of the present case who has deposed that on 28.03.2011 he was posted in Police Station North Rohini and on that day he was on Emergency Duty from 08:00 AM to 08:00 PM and on that day at about 12.15 PM complainant Kapil Dev came to St. Vs. Avinar Tiwari, FIR No. 62/2011, PS North Rohini Page No. 21 the police station and he made his statement which is Ex.PW9/A. According to the witness thereafter he made his endorsement on the statement of Kapil Dev which is Ex.PW15/A after which he got the case registered. The witness has also deposed that thereafter he alongwith complainant went to his vicinity in search of kidnapper and his daughter 'S' but they could not found available. Witness has also deposed that he made inquiry in the locality but Rahul and Avinash @ Babloo were not found available in their room and thereafter he confronted with the fact with the father of Rahul who was interrogated who told him that his son had gone to his native village. Witness has further deposed that he told him that he had seen the prosecutrix 'S' in the company of accused Avinash@ Babloo and Rahul and recorded his statement. The witness has testified that on 02.04.2011 he wrote a letter to the Principal, Sarvodaya Sr. Secondary School, Sector 7, Rohini, Delhi regarding verification of the age of the prosecutrix 'S' vide his request Ex.PW15/B and the endorsement of school encircled Ex.PW15/C attested by Principal at point B. The witness has also deposed that on 05.04.2011, he along with father of prosecutrix and one Constable went to the native village Avinash for his search but he could not found available there. According to the witness the prosecutrix was not found available there and thereafter he was transferred from Police Station North Rohini and he handed over the case file to the MHC(R). This witness was not cross examined by Ld. Defence counsel despite being granted an opportunity in this regard.
St. Vs. Avinar Tiwari, FIR No. 62/2011, PS North Rohini Page No. 22 (36) PW16 ASI Anil Kumar has deposed that in the year 2011 he was posted in Police Station North Rohini and on 05.11.2011 he alongwith HC Ashok Kumar, Ct. Satyanarain, complainant Kapil Dev Yadav had gone Allahabad and they reached Allahabad on 06.11.2011 and on 07.11.2011 they reached C.O.D. Gate, Naini in Ram Sagar Colony, in front of one house in the said Ram Sagar Colony, Allahabad, Gali no.3, UP. According to the witness the prosecutrix 'S' was standing, she was identified by Kapil Dev and at the instance of Kapil Dev, the prosecutrix 'S' was taken into custody and a recovery memo was prepared vide Ex.PW3/A. According to him at that time the accused Avinash @ Babloo was not present there and thereafter on 08.11.2011 they reached Delhi and the prosecutrix was handed over to W/ASI Krishna. Witness has further deposed that on 09.11.2011 he again produced the prosecutrix before the court concerned i.e. Sh. Vishal Singh, Ld. MM for getting her statement U/s 164 Cr. P. C. recorded. According to the witness, he came to know that accused Avinash @ Babloo was arrested by the special staff on 27.07.2013 U/s 41.1(c) Cr.P.C. and the official of special staff informed their police station about the arrest of accused vide DD No. 57B which is Ex.PW16/A which was marked to him by SHO vide his endorsement Ex.PW16/B which bears the signatures of the then SHO at point A and the Ld. MM had sent the accused Avinash in Judicial Custody for three days when Special Staff nabbed him. Witness has also deposed that on 30.07.2013 accused Avinash @ Babloo was in the lockup of Rohini Court Complex for his routine production before the court concern, he moved an application St. Vs. Avinar Tiwari, FIR No. 62/2011, PS North Rohini Page No. 23 before the court concerned and requested the Court to give permission for interrogation of accused Avinash vide his application Ex.PW16/C. He has proved that with the permission of the court the accused Avinash was arrested vide memo Ex.PW16/D and his disclosure statement was recorded vide Ex.PW16/E after which the accused was produced before the court concerned from where he was sent to Judicial Custody. The witness has also deposed that during investigation he collected the relevant papers and copy of Kalandara U/s 41.1(c) prepared by the HC Devender of Special Staff, which Kalandara is Ex.PW16/F after which he recorded statement of witnesses and after completion of investigation he filed the supplementary charge sheet against accused Avinash @ Babloo.
(37) In his cross examination by Ld. Defence counsel witness has denied the suggestion that that he had not went to Naini or that Prosecutrix was not recovered in a manner as mentioned by him. Witness has further denied the suggestion that he had not fairly investigated the matter or that he is deposing falsely.
STATEMENT OF THE ACCUSED/ DEFENCE EVIDENCE:
(38) After completion of prosecution evidence the statement of the accused Vinash Tiwari @ Babloo has been recorded under Section 313 Cr.P.C. wherein all the incriminating material was put to him which he has denied. He has stated that he is innocent and has been falsely implicated by the complainant. The accused has preferred not to examine any witness in his St. Vs. Avinar Tiwari, FIR No. 62/2011, PS North Rohini Page No. 24 defence.
FINDINGS:
(39) I have heard the arguments advanced before me by the Ld. Addl.
PP for the State and the Ld. Amicus Curiae. I have also gone through the evidence on record. My findings are as under:
Identity of the accused:
(40) In so far as the identity of the accused Avinash Tiwari @ Babloo is concerned, the same is not disputed. He has been named in the FIR and has also been correctly identified in the court not only by the prosecutrix 'S' but also by her parents. This being the background I hereby hold that the identity of the accused stands established.
Age of the prosecutrix:
(41) The case of the prosecution is that at the time of the incident i.e. 27.3.2011 and even on the date when the prosecutrix 'S' was recovered i.e. 7.11.2011 she was a minor. In this regard the prosecution has placed on record the school record of the prosecutrix which has been duly proved in the Court by Vikas Rana (PW9), Assistant Teacher from Government Sarvodaya Co Educational, Senior Secondary School, Sector7, Rohini. He has placed on record the School Leaving Certificate of the prosecutrix 's' which is Ex.PW9/A, attested copy of Admission and Withdrawal Register which is Ex.PW9/B showing the entry in respect of the prosecutrix at serial No. 7272 St. Vs. Avinar Tiwari, FIR No. 62/2011, PS North Rohini Page No. 25 according to which the date of birth of the prosecutrix 'S' is 12.12.1995 and the certificate issued by the Principal which is Ex.PW9/C. The above documents have not been controverted by the accused and it stands established that the date of birth of the prosecutrix 'S' was 12.12.1995 and on the date she went missing i.e. 28.3.2011 she was a minor i.e. Fifteen years, Three months and Sixteen days old.
Medical Evidence:
(42) The accused does not dispute the MLC of the prosecutrix 'S' which is Ex.PX1. It is evident from the said MLC that the prosecutrix had refused for her internal examination and she admits that there are no allegations of the accused making forcible relations with her at any point of time. She had informed in the doctor that she had been living with the accused for more than six months and there was no allegations of rape.
Therefore, her internal examination had not been conducted and no exhibits were sent to FSL. There is no medical or forensic evidence on record to connect the accused with the alleged offence. The MLC Ex.PX1 also reflects that she had been brought to the hospital by W/Ct. Pankaj and had refused to get her internal examination conducted and had herself told the doctor that she was married. This aspect also finds due corroboration from the testimonies of W/Ct. Pankaj (PW2) and W/ASI Krishna (PW4) who have proved that the mother of the prosecutrix and also the prosecutrix herself had refused for internal examination of the prosecutrix.
St. Vs. Avinar Tiwari, FIR No. 62/2011, PS North Rohini Page No. 26 Allegations against the accused:
(43) The case of the prosecution is that the accused Avinash Tiwari @ Babloo kidnapped the prosecutrix 'S' from the lawful guardianship of her parents with the intent that she may be forced or seduced to marriage and criminally intimidated the prosecutrix 'S' to kill her parents. Further, it is alleged that the accused being above 21 years of age contacted the prosecutrix 'S' a child for marriage which is an offence punishable under Section 4 of Child Marriage Restraint Act.
(44) In so far as the first aspect of kidnapping the prosecutrix 'S' is concerned, in this regard the testimony of the sole witness i.e. prosecutrix 'S' is relevant. She has been examined in the court as PW14 and has been cross examined at length. It is writ large from her testimony that she had in fact eloped voluntarily with the accused Avinash Tiwari @ Babloo being known to him previously who was residing in the same building and she used to frequently talk to the accused which was objected to by her mother who even slapped her. Though initially in her crossexamination she stated that her parents had also made complaints to the police about the conduct of Avinash but later admits that there was no such complaint. During the cross examination of the prosecutrix, this Court has repeatedly observed the demeanor of the prosecutrix and found that there was no sign of fear or pressure upon her and also noted that she was repeatedly speaking false facts since whenever confronted with the contradictions which were virtual falsehood she simply expressed her regrets for making false statements by St. Vs. Avinar Tiwari, FIR No. 62/2011, PS North Rohini Page No. 27 saying that she was sorry for the same.
(45) It is writ large that during this period when the prosecutrix claims she was forcibly lifted and put on motorcycle and then taken to various places in public transport there were ample opportunities to the prosecutrix 'S' to have raised an alarm first when she was being taken on the bike, second at Naharpur Bus Stand and third when she was taken in the public transport including Bus and Train to various places as claimed by her, but she did not raise any alarm. Though initially before the Court she claimed that she raised an alarm and also asked fourfive persons to help her, but the claims of the prosecutrix 'S' does not appear truthful since not only is she non specific as regards the time and place when she did so but had that been so, I am sure that somebody from the public would have helped her or have made a call at 100 number, which is not the case.
(46) In view of the above, it is difficult to hold that the accused had taken away the prosecutrix from the lawful guardianship of her parents by using force and inducement upon her, since it is writ large that the prosecutrix had herself gone with the accused, rather she accompanied the accused and stayed with him. Reference is being made to the cases Krishan Kumar Malik Vs. State of Haryana, reported in 2011 AIAP (Criminal) 604, Supreme Court; S. Varadarajan Vs. State of Madras, AIR 1965 Supreme Court 942 (V 52 C 150) and in the case of Sunil Vs. State of Government of N. C. T. Delhi, decided on 25.5.2008 by Hon'ble Ms. Justice Aruna Suresh, Delhi High Court and Sonu Vs. State (NCT of Delhi) 2010 (3) Crimes: 42 (Delhi). St. Vs. Avinar Tiwari, FIR No. 62/2011, PS North Rohini Page No. 28 (47) Further, the prosecutrix 'S' has also contradicted herself on material aspects. Initially she stated that the accused Avinash had given the bike to Rahul at Naharpur Bus Stand but in her crossexamination she stated that the accused took her to Railway Station on bike and parked the same over there. She claimed that first the accused took her to Haridwar and thereafter Allahabad where she stayed with him for about six months and during his period she was never kept in confinement or locked. She was residing at Allahabad in a building where there were many tenants, but she did not tell the tenants or the landlord that the accused had taken her forcibly. The accused Avinash was maintaining a mobile phone during this period and she could have made a phone call to her father which she did not do. The accused is a driver by profession and as claimed by the prosecutrix he used to take his vehicle to various places like Gorakhpur, Mirzapur, Gondabasti, Banaras, Jaunpur Etc. which are far away places of distance of about 400500 kilometers from Allahabad and he used to return after threefour days but even during those days the prosecutrix made no attempts either to seek assistance from the local police or from the tenants or made any calls to her family.
Further, during the crossexamination she states that she stayed with the accused for only one month whereas she had stayed with him for almost six months. She also claims that during this period she did not cook any food and she survived only by eating Maggie and she never did any cooking. She also claims that she went without food for many days and had become extremely weak which is not borne out from the evidence on record. It is impossible St. Vs. Avinar Tiwari, FIR No. 62/2011, PS North Rohini Page No. 29 that anybody would have been kept for six months without any food and could have survived by occasionally eating Maggie and then managed to maintain good health. The prosecutrix 'S' has further stated that she had informed the doctor at BSA Hospital that the accused used to keep her hungry and she was feeling weak but I may note that no such observations have been made by the Doctor who had prepared the MLC of the prosecutrix Ex.PX1 and even when she appeared before the Court she appeared to be enjoying good health. (48) Further, in so far as the aspect of marriage is concerned initially the prosecutrix 'S' was concealing the same but later when she was confronted with the marriage certificate Ex.PW13/C she admitted her signatures and photographs on the same and also admitted that the same bear the signatures of her father. She has also admitted that she had appeared before the Registrar claiming that she was a major aged about 20 years but did not inform him about any kind of pressure. Interestingly the said marriage certificate which has been placed on record by the prosecution has not been proved by the prosecution by calling the witness from the Sub Registrar Office, Allahabad and no investigations have been conducted by the Investigating officer with regard to the signatures of the father and mother of the prosecutrix present on the same reflecting her age as 20 years and even during her examination in the Court I observe that the physical and mental age of the prosecutrix 'S' did not appear to be that of a minor or a child but was that of a mature adult. It is also observed that it is a normal practice in our country that while getting the child admitted in the school particularly in respect of child residing in JJ Clusters St. Vs. Avinar Tiwari, FIR No. 62/2011, PS North Rohini Page No. 30 the date of birth of the child is given by approximation and hence the possibility of the prosecutrix being more her age cannot be ruled out. From the evidence on record it stands established that this is a case of voluntarily elopement by the prosecutrix 'S' who was in love with the accused Avinash Tiwari @ Babloo. However, technically and legally the prosecutrix 'S' was a minor less than 18 years of age, her date of birth as per the school record being 12.12.1995.
(49) This being the background, I hereby hold the accused Avinash Tiwari @ Babloo guilty of the offence under Section 363 Indian Penal Code for having taken away the minor prosecutrix 'S' with him without the consent of her lawful guardians. However, in so far as the charges under Sections 366 and 506 Indian Penal Code and Section 4 of Child Marriage Restraint Act are concerned the prosecution has not been able to bring before this Court the cogent admissible evidence to prove and establish the said allegations and charges beyond reasonable doubt and hence benefit of doubt is being given to the accused Avinash Tiwari who is acquitted of the said charges. FINAL CONCLUSIONS:
(50) In the case of Sharad Birdhichand Sarda Vs. 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 St. Vs. Avinar Tiwari, FIR No. 62/2011, PS North Rohini Page No. 31 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 only with 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.
(51) Applying the settled principles of law to the facts of the present case it is evident that the identity of the accused Avinash Tiwari @ Babloo stands established. From the evidence on record the following aspects stand established:
➢ That the prosecutrix 'S' was residing along with her family at House No. 17, Village Naharpur, Sector7, Rohini which was a tenanted premises.
➢ That the accused Avinash Tiwari was also residing on rent in the same building on the ground floor.
th ➢ That at the time of incident the prosecutrix 'S' was studying in class 7 and her date of birth as per the school record is 12.12.1995. ➢ That on 27.3.2011 the prosecutrix 'S' had eloped with the accused St. Vs. Avinar Tiwari, FIR No. 62/2011, PS North Rohini Page No. 32 Avinash Tiwari @ Babloo and first they went to Haridwar where they stayed for one day and then they went to Allahabad.
➢ That the father of the prosecutrix 'S' namely Kapil Dev Yadav had lodged a missing report in respect of his daughter on the basis of which the present FIR was registered.
➢ That at Allahabad the prosecutrix 'S' stayed with the accused for about six months and during this period (i.e. from 27.3.2011 when she eloped with the accused till she was recovered i.e. 7.11.2011) she had ample opportunities to seek assistance/ help which she did not do. ➢ That on 7.11.2011 the prosecutrix 'S' was recovered from Allahabad but the accused could not be traced.
➢ That when the prosecutrix 'S' was recovered she was dressed up in a saree, having chura in her hands and had put Sindoor on her forehead. ➢ That on 9.11.2011 the prosecutrix 'S' was brought to Delhi and was medically examined at BSA Hospital where she informed the doctor that she voluntarily eloped with the accused Avinash Tiwari with whom she had married.
(52) This being the background, I hereby hold that this is a case where the prosecutrix 'S' had herself eloped with the accused Avinash @ Tiwari and not a case of kidnapping as claimed by the prosecutrix. There is also no evidence either direct or circumstantial with regard to the illegal use of force or sexual abuse upon the prosecutrix during the period she stayed with the St. Vs. Avinar Tiwari, FIR No. 62/2011, PS North Rohini Page No. 33 accused as alleged by the prosecutrix or even borne out from the evidence on record. However, since legally and technically the prosecutrix 'S' was a minor at the time of the incident therefore the accused Avinash Tiwari @ Babloo guilty of the offence under Section 363 Indian Penal Code for having taken away the minor prosecutrix 'S' with him without the consent of her lawful guardians. However, in so far as the charges under Sections 366 and 506 Indian Penal Code and Section 4 of Child Marriage Restraint Act are concerned the prosecution has not been able to bring on record the cogent admissible evidence on record to prove the said allegations beyond reasonable doubt and hence benefit of doubt is being given to the accused Avinash Tiwari who is acquitted of the said charges.
Announced in the open court (Dr. KAMINI LAU)
Dated: 14.2.2014 ASJII(NW)/ ROHINI
St. Vs. Avinar Tiwari, FIR No. 62/2011, PS North Rohini Page No. 34
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Session Case No. 175/2013 State Vs. Avinash Tiwari @ Babloo S/o Girish Chand R/o Village Kadipur, PS Manjan Pur, Distt. Kaushambi, UP (Convicted) FIR No.: 62/2011 Police Station: North Rohini Under Section: 363/366/506 IPC & 9 of Child Marriage Act Date of conviction: 14.2.2014 Arguments heard on: 14.2.2014 Date of sentence: 14.2.2014 APPEARANCE:
Present: Sh. Tofeeq Ahmed, Addl. Public Prosecutor for the State.
Convict in JC with Sh. Pawan Kumar Advocate assisted by Sh. ` Rajeev Kaul Amicus Curiae.
ORDER ON SENTENCE:
As per the allegations on 27.3.2011 between 7:00 PM to 8:00 PM at village Naharpur, Sector7, Rohini, Delhi the accused Avinash Tiwari @ St. Vs. Avinar Tiwari, FIR No. 62/2011, PS North Rohini Page No. 35 Babloo kidnapped the prosecutrix 'S' aged about 15 years from the lawful guardianship of her parents with the intent that she may be forced and seduced to marriage and also criminally intimidated her to kill her parents. It has also been alleged that the accused being above 21 years of age contacted the prosecutrix 'S' who was a minor at that time for marriage.
However, on the basis of the testimonies of the various prosecution witnesses and also on the basis of the other circumstantial evidence on record, this Court vide a detailed judgment of the even date held the accused guilty only for the offence under Section 363 IPC since technically the prosecutrix 'S' was a minor below 18 years on the date of her elopement on 28.3.2011 and also on the date of her recovery i.e. 7.11.2011, her date of birth as per the school record being 12.12.1995. However, the accused has been acquitted of the offence under Section 366, 506 IPC and Section 4 of Child Marriage Restraint Act the prosecution having failed to prove the allegations beyond reasonable doubt.
Heard arguments on the point of sentence. The convict is stated to be a young boy of 23 years having a family comprising of parents, three elder sisters and five younger brothers. He is a matriculate and was doing the work of seat cover making. The convict has already remained in Judicial custody for Six Months & fourteen days. Ld. Counsel for the convict has vehemently argued that the convict is a first time offender and is the helping hand of his family. He prays that a lenient view be taken against the convict.
I have considered the submissions made before me. I may St. Vs. Avinar Tiwari, FIR No. 62/2011, PS North Rohini Page No. 36 observe that the convict has been held guilty only of the offence under Section 363 IPC since the case has been found to be of voluntarily elopement by the prosecutrix 'S' and legally and technically she was a minor below 18 years on the date of her elopement on 28.3.2011 and also on the date of her recovery i.e. 7.11.2011, her date of birth as per the school record being 12.12.1995. The convict is a young boy and has no criminal antecedents. In view of the above, a lenient view is taken against the convict Avinash Tiwari @ Babloo who is sentenced to Rigorous Imprisonment for Six Months & Fourteen Days (i.e. the period already undergone by him) and fine to the tune of Rs.1,000/ (Rs.
One Thousand) for the offence under Section 363 IPC. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of One Week.
Benefit of Section 428 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 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.
Copy of the judgment and order on sentence be given to the convict free of costs and another be attached along with his jail warrants. St. Vs. Avinar Tiwari, FIR No. 62/2011, PS North Rohini Page No. 37
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU) Dated: 14.2.2014 ASJII(NW)/ ROHINI St. Vs. Avinar Tiwari, FIR No. 62/2011, PS North Rohini Page No. 38 State Vs. Avinash Tiwari @ Babloo FIR No. 62/2011 PS NorthRohini 14.2.2014 Present: Ld. Addl. PP for the State. Accused Avinash Tiwari in JC with Sh. Rajeev Kaul Advocate/ Amicus Curiae.
At this stage, Sh. S.P. Verma Advocate has appeared on behalf of the accused and has placed on record his Vakalatnama. However, Sh. S.P. Verma Advocate has not obtained any no objection from the Ld. Amicus Curiae. When asked the accused has informed this Court that today in the morning on the asking of his father, who was unaware that he is being represented by Ld. Amicus Curiae, he had signed the Vakalatnama in favour of Sh. S.P. Verma Advocate to represent him. He submits that he is withdrawing the Vaklatnama signed by him in favour of Sh. S.P. Verma Advocate and requests that the Ld. Amicus Curiae may be permitted to continue to assist him in this case. The statements of the accused and his father are recorded separately in view of which Sh. S.P. Advocate is discharged and the Ld. Amicus Curiae Sh. Rajeev Kaul is permitted to continue to assist the accused. St. Vs. Avinar Tiwari, FIR No. 62/2011, PS North Rohini Page No. 39
Statement of the accused recorded u/s. 313 Cr.P.C. Accused does not wish to lead defence evidence.
Heard final arguments. Be listed for orders at 2:00 PM.
(Dr. Kamini Lau)
ASJII(NW)/ 14.2.2014
2:00 PM
Present: Ld. Addl. PP for the State.
Accused Avinash Tiwari in JC with Sh. Rajeev Kaul
Advocate/ Amicus Curiae.
Vide my separate detail order dictated and announced in the open court, the accused Avinash Tiwari @ Babloo is held guilty of the offence under Section 363 Indian Penal Code. He is however acquitted of the charges under Sections 366 and 506 Indian Penal Code and Section 4 of Child Marriage Restraint Act.
Heard arguments on sentence. Be listed for orders on
sentence at 4:00 PM.
(Dr. Kamini Lau)
ASJII(NW)/ 14.2.2014
St. Vs. Avinar Tiwari, FIR No. 62/2011, PS North Rohini Page No. 40
4:00 PM
Present: Ld. Addl. PP for the State.
Convict Avinash Tiwari in JC with Sh. Rajeev Kaul
Advocate/ Amicus Curiae.
Vide my separate detail order dictated and announced in the open court, the convict Avinash Tiwari @ Babloo who is sentenced to Rigorous Imprisonment for Six Months & Fourteen Days (i.e. the period already undergone by him) and fine to the tune of Rs.1,000/ (Rs. One Thousand) for the offence under Section 363 IPC. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of One Week.
Benefit of Section 428 Code of Criminal Procedure shall be given to the convict for the period already undergone by him during the trial, as per rules.
Copy of the judgment and order on sentence be given to the convict free of costs and another be attached along with his jail warrants.
File be consigned to Record Room.
(Dr. Kamini Lau) ASJII(NW)/ 14.2.2014 St. Vs. Avinar Tiwari, FIR No. 62/2011, PS North Rohini Page No. 41