Delhi District Court
Sc No. 59436/16 State vs . Dinesh Sharma on 20 April, 2017
SC No. 59436/16 State Vs. Dinesh Sharma
IN THE COURT OF SH. GAUTAM MANAN
ADDITIONAL SESSIONS JUDGE-01, NORTH
ROHINI, NEW DELHI
In the matter of:-
S. C. No. 59436/16
FIR No. 796/16
Police Station S.B. Dairy
Under Section 363/366A/376(2)(n)
IPC & 6 POCSO Act
State
Versus
Dinesh Sharma
S/o Sh. Ran Singh
R/o B-26, Gali No. 1, Raja Vihar,
S.P. Badli, Delhi. ......Accused
Date of institution 19.12.2016
Judgment reserved on 20.04.2017
Judgment Pronounced on 20.04.2017
Decision Acquitted
Judgment 1 of 9
SC No. 59436/16 State Vs. Dinesh Sharma
JUDGMENT
1. Accused is facing trial in present case on allegations of kidnapping prosecutrix C, a girl aged about 17 years and committing repeated penetrative sexual assault on her.
2. FIR in question was registered on complaint of mother of prosecutrix who alleged that on 28.10.2016 at about 10:30 AM, her daughter(Prosecutrix C) aged around 17 ½ years went from home and did not return. She tried to trace out prosecutrix but all in vain and and suspected the role of unknown person in enticing her.
3. On 08.11.2016, prosecutrix along with accused Dinesh Sharma were produced by family members of the prosecutrix in the police station. Thereafter, her statement u/s. 164 Cr. P.C was recorded. Since prosecutrix was found minor on the date she went missing, accused was arrested and charge-sheeted.
Judgment 2 of 9
SC No. 59436/16 State Vs. Dinesh Sharma
4. Charge for offence under Section 363/366A IPC & 6 POCSO (Protection of Children from Sexual Offences) Act, 2012 in alternative for offence u/s. 376(2)(n) IPC was framed against accused. Accused pleaded not guilty and claimed trial.
5. Prosecution examined prosecutrix as PW1. She did not support prosecution version. Prosecutrix deposed that on 28.10.2016 in the morning hours, she voluntarily left her home and went along with her friend/accused Dinesh Sharma to Haridwar and they came back to Delhi on 07.11.2016. During their stay at Haridwar, they did not establish physical relations and remained there as a friend. Prosecutrix proved her statement recorded u/s. 164 Cr. P.C as Ex. PW1/A. Prosecutrix testified that at the time of giving her statement u/s. 164 Cr. P.C , she was under
pressure of her family members. She further testified that accused was her friend and she had left her home of her own. She also Judgment 3 of 9 SC No. 59436/16 State Vs. Dinesh Sharma deposed that accused did not entice her nor established physical relations with her. Since, prosecutrix turned hostile, she was duly cross-examined by Ld. Addl. PP for State. During her cross- examination, she denied that accused took her without her consent. She further denied that accused committed rape with her twice or thrice without her consent. During her cross-examination, she maintained that accused did not establish physical relations with her and she was not taken by him against her consent.
6. PW2 (mother of prosecutrix) deposed that she lodged a missing complaint of her daughter/prosecutrix as Ex. PW2/A. She was duly cross-examined by Ld. Addl. PP for State and during her cross-examination, she denied that on 08.11.2016, her daughter returned and told her that accused took her to Haridwar and kept her in a hotel and committed rape upon her. She maintained that accused did not establish physical relations with her daughter.
Judgment 4 of 9
SC No. 59436/16 State Vs. Dinesh Sharma
7. Since prosecutrix who is most material witness of the case did not support the prosecution case, recording of further prosecution evidence was closed. Recording of statement of accused u/s 313 Cr.P.C. was dispensed with as no incriminating evidence came on record against him.
8. Arguments have been addressed by learned Additional PP as well as learned defence counsel. I have heard the arguments and also perused the case file carefully.
9. Age of the prosecutrix: Prosecution has relied upon the Birth Certificate of prosecutrix issued by SubRegistrar, Birth & Death, North Delhi Municipal Corporation as per which her date of birth is 01.05.1999. Defence has not disputed the age of prosecutrix in any manner. As such, on the date of incident (28.10.2016), prosecutrix was aged about 17 years and hence she is a "Child" within the meaning given under the POCSO Act.
Judgment 5 of 9
SC No. 59436/16 State Vs. Dinesh Sharma
10. Testimony of prosecutrix: Prosecutrix categorically deposed that accused was her friend and she voluntarily left her home along with accused Dinesh Sharma and went to Haridwar.
She further deposed that they came back to Delhi on 07.11.2016. During their stay at Haridwar, they did not establish physical relations and remained there as a friend. She categorically deposed that accused did not commit any wrong with her and she stayed with the accused as per her own will.
11. It is evident that prosecutrix did not make any allegation against accused in her testimony. It has been held in para 8 of the judgment titled as Bunty Vs. State (G.N.C.T.) of Delhi in Crl. Appeal no. 846/2009 decided on 16.03.2011 by the Hon'ble Delhi High Court that :
"8. In this case, the prosecutrix had accompanied the Appellant voluntarily without any use of force exercised by him. It is not a case wherein he had taken the prosecutrix after enticing her. Prosecutrix had traveled with the accused to different places outside Delhi without raising any alarm or complaining to fellow passengers that she had Judgment 6 of 9 SC No. 59436/16 State Vs. Dinesh Sharma been taken away by force. If a minor accompanies accused voluntarily without any offer or allurement then offence under Section 363 is not made out. ...."
12. In this regard, it would relevant to refer to the case titled as "S. Varadarajan Vs. State of Madras (reported as AIR 1965 SC 942)", where in while distinguishing between "taking" and "allowing a minor to accompany a person" it has been laid down by the Hon'ble Supreme Court of India that:
"There is a distinction between " taking" and allowing a minor to accompany a person. The two expressions are not synonymous though it can not be laid down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of S.
361. Where the minor leaves her father's protection knowing and having capacity to know the full import of what she is doing, voluntarily joins the accused person, the accused cannot be said to have taken her away from the keeping of her lawful guardian."
13. In the present case also, the element of 'taking away' or 'enticement' is found to be lacking. Prosecutrix categorically deposed that she voluntarily left her home and went alongwith Judgment 7 of 9 SC No. 59436/16 State Vs. Dinesh Sharma accused to Haridwar. In light of her testimony it is evident that prosecutrix was willing and consenting party and it is evident that everything has happened with her will. In these circumstances, the factum of kidnapping or confinement of prosecutrix does not stands proved.
14. Allegations of Sexual Assault : Prosecutrix has categorically deposed that the accused did not establish physical relationship with her and as such she refused for her internal medical examination. As per MLC of prosecutrix she has refused for her internal medical examination. MLC also does not indicate any physical injury on prosecutrix. Thus, there is no conclusive medical evidence on record to establish that accused committed sexual assault on the prosecutrix.
15. Nutshell of foregoing discussion is that prosecution has miserably failed to prove that accused kidnapped prosecutrix to force/seduce her to have illicit intercourse with him nor there is Judgment 8 of 9 SC No. 59436/16 State Vs. Dinesh Sharma any evidence on record to substantiate allegations of commission of sexual assault on prosecutrix.
16. Conclusion: In the light of the evidence recorded, allegations against accused are not proved. Accordingly, accused stands acquitted for offence for which he has been charged. Accused is directed to furnish a personal bond in sum of Rs 10,000/- under provisions of Section 437-A Cr.P.C. Announced in open Court on Day of 20th April, 2017.
(GAUTAM MANAN)
ASJ-01:NORTH:ROHINI:DELHI
Judgment 9 of 9
SC No. 59436/16 State Vs. Dinesh Sharma
State Vs. Dinesh Sharma
SC No. 59436/16
FIR No. 796/16
PS Shahbad Dairy
20.04.2017
Present : Sh. Sanjay Jindal, Ld. Addl. PP for the State.
Accused on bail Sh. Sunil Tomar, Ld Counsel for accused.
IO/SI Urmil Sharma in person.
No PW is present.
Prosecutrix and her mother have not supported the prosecution case, it would be fruitless exercise to record further evidence in the case.
PE Stands Closed.
No incriminating evidence has come on record against the accused, as such recording of statement of accused under provisions of 313 Cr.P.C. stands dispensed with.
Vide separate judgment, accused stands acquitted for the offence for which he has been charged. He is directed to furnish a personal bond in sum of Rs 10,000/- under provisions of Section 437-A Cr.P.C with surety in the like amount. Bond furnished and accepted.
File be consigned to record room.
Announced in open Court on Day of 20th April, 2017.
(GAUTAM MANAN)
ASJ-01:NORTH:ROHINI:DELHI
Judgment 10 of 9