Delhi District Court
State vs . Sarvesh Kumar on 17 July, 2015
FIR No.250/11
State Vs. Sarvesh Kumar
PS Palam village
IN THE COURT OF DR. PANKAJ SHARMA,
METROPOLITAN MAGISTRATE01, DWARKA COURTS, DELHI
Brief reasons for the Judgment in the case with following
particulars:
FIR No. 250/11
PS: Palam Village
U/s 363 IPC
State V/s Sarvesh Kumar
C.No. 129/2
U.ID No. 02405R0127712012
Date of Institution: 02.03.2012
Name of the Complainant Sh. Upendra Sharma
s/o Sh. Ram Swaroop
Sharma
R/o WZ296D,
Near Jat Chopal,
Palam Village, New Delhi.
Name and address of accused Sarvesh Kumar
s/o Sh. Baldeo Singh
R/o House No. 51, Gali No. 1,
Basai Extension, Gurgaon,
Haryana.
Charge framed against accused u/s 363 IPC
Plea of accused Pleaded not guilty
Final Order Acquitted
Date for announcing the orders 17.07.2015
C No. 129/2 U.ID No. 02405R0127712012 Page No. 1 of 11
FIR No.250/11
State Vs. Sarvesh Kumar
PS Palam village
JUDGMENT
The brief facts and pre trial procedure
1. Charge u/s 363 IPC was framed against the accused on 17.08.2012 that "on 14.09.2011 at about 5.00PM at WZ2696 D, Near Jat Chopal, Palam Village, New Delhi, within the jurisdiction of PS Palam Village accused took or enticed a minor girl Akanksha aged about 16 years out of the keeping of her father/complainant Sh. Upender Sharma without the consent of complainant" and thereby he was charged for the aforesaid offence, to which he pleaded not guilty and claimed trial.
Trial
2. To prove the charges, prosecution cited 09 witnesses in the list of witnesses and examined all of them. PE stood closed on 27.05.2015. Thereafter, statement of accused U/S 313 CrPC was recorded in which accused pleaded his innocence. No defence evidence was led by accused.
3. PW1: Akanksha deposed that on 14.09.2011 she was residing with his family at WZ 294, Palam Village, near Jaat Chopal, New Delhi. He usually visit to maternal uncle's house which is situated at Basai Enclave, Gurgaon where one person namely Sarvesh Kumar also residing. She came across with Sarvesh Kumar. Accused Sarvesh promised her for marriage with him and on this C No. 129/2 U.ID No. 02405R0127712012 Page No. 2 of 11 FIR No.250/11 State Vs. Sarvesh Kumar PS Palam village pretext she was taken away by the accused Sarvesh in Lucknow. She along with accused Sarvesh Kumar remained in Lucknow for about two months along with his mother and brother. On 10.11.2011, she called her father from the mobile phone of some relative of accused Sarvesh Kumar. Thereafter on 15.11.2011 she along with accused Sarvesh returned back to Delhi in PS Palam Village. Her father reached at PS Palam Village. On 15.11.2011 her statement u/s 164 Cr.P.C Ex. PW1/A was recorded. She was got medically examined in DDU Hospital and thereafter she was sent to Nari Niketan. PW1 correctly identified the accused.
In cross examination she stated that she came in contact with accused Sarvesh about two months prior to the incident. She also stated that she went to the house of accused in Lucknow. She stated that she made her statement voluntarily before a judge during investigation. She stated that she solemnized marriage in a temple with the accused. She stated that she lived with accused for about two months without any influence, pressure or threats. She stated that she was treated nicely by the accused and his family members during the stay with the accused in Lucknow. She stated that she was not kept forcibly or under any pressure by the accused or his family members at Lucknow. She affirmed that she voluntarily accompanied the accused Sarvesh to his house at Lucknow.
4. PW2: Rekha deposed that on 15.11.2011 she was posted C No. 129/2 U.ID No. 02405R0127712012 Page No. 3 of 11 FIR No.250/11 State Vs. Sarvesh Kumar PS Palam village at PS Palam Village as woman Constable from DHG. On that day IO SI Birender prepared the recovery memo of one girl namely Akansha at the PS (Ex. PW2/A). The girl was got medically examined and the girl remained in her custody till evening. Her statement was recorded by the IO.
5. PW3: SI Harkesh was the duty officer at the relevant date and time, who proved on record the FIR Ex.PW3/A and his endorsement on the rukka Ex.PW3/B.
6. PW4: HC Rakesh deposed that on 21.09.2011 she was posted at PS Palam villge. On that day complainant Bhupender Sharma came to PS and got recorded his statement Ex. PW4/A regarding the missing of his daughter. After recording his statement he made an endorsement on the complaint and prepared a tehrir Ex. PW4/B and handed over the same to Duty Officer for registration of the case. After registration of the case, the investigation was further assigned to SI Birender.
7. PW5:Ved Pal (Principal of Sarvodaya Kanya Vidyalaya No.2 Palam Village) brought on record the record relating to the date of birth of Akanksha D/o Sh. Upender Sharma and as per the record, Akansha was admitted in the school on 29.03.2006 in 6 th Std. On the basis of the School Leaving Certificate issued by MCD Primary School, Palam, the date of birth of Akansha is 14.08.1995.
C No. 129/2 U.ID No. 02405R0127712012 Page No. 4 of 11 FIR No.250/11 State Vs. Sarvesh Kumar PS Palam village He brought on record the copy of S.L.C Ex.PW5/A, copy of admission and withdrawal register Ex.PW5/B, copy of the secondary school examination certificate MarkA1, letter issued by the Principal Ex.PW5/C.
8. PW6: Upender Sharma deposed that in the year 2011, he was residing at WZ296D, near Jat Chopal, Palam Village along with his family on rent. Akanksha is his daughter and she was about 16 years old in the year 2011. He is carpenter by profession. On 14.09.2011, at around 5.00pm, his daughter went to the market from home by saying that she had to purchase books but she did not return back to home. She made efforts to search his daughter but she was not found. On the day when she left the house, she was wearing red coloured kurta and black coloured pajami. On 21.09.2011, he went to the PS and gave his statement Ex.PW6/A regarding the missing of his daughter and he had suspicion that someone had taken away his daughter by enticing her. He contacted his relatives in Gurgaon at Basai Enclave and came to know that accused Sarvesh brother in law of Radhey Shyam had taken away his daughter by enticing her. He had contacted Radhey Shyam telephonically whose number was provided to him by his relatives but he had shown ignorance about taking away of his daughter by Sarvesh and then he went to PS Palam Village and the police officials talked with Radhey Shyam only thereafter, his daughter was produced before the police by the accused. PW6 C No. 129/2 U.ID No. 02405R0127712012 Page No. 5 of 11 FIR No.250/11 State Vs. Sarvesh Kumar PS Palam village correctly identified the accused.
In cross examination, he stated that his daughter Akanksha was not using any mobile phone in the year 2011. He stated that on that day his daughter did not tell him that she had to purchase books from the market. He further stated that on that day, he came back from his work at 78.00pm. He stated that he did not see his daughter wearing red coloured kurta and black coloured pajami on that day. He stated that his wife did not call him at work to inform him that Akanksha had not returned from the market. He stated that he did not lodge any complaint with the police on that day. He stated that he lodged a complaint to the police after 34 days of missing of his daughter. He stated that he did not see Akanksha going with accused Sarvesh. He stated that he did not see Akanksha with accused Sarvesh coming back to PS. He stated that he did not talk to his daughter in the PS or in Court on the day she was brought before the Hon'ble Court. He stated that he never met accused Sarvesh before the alleged incident or after the incident. He also stated that his daughter went along with her friend on the day she went missing.
9. PW7: SI Virender deposed that on 21.09.2011, he was posted at PS Palam Village as SI. On that day after registration of FIR, further investigation was marked to him. During investigation he collected the photograph of the missing girl Akanksha from her father. The photograph is marked as mark A1 and made efforts to C No. 129/2 U.ID No. 02405R0127712012 Page No. 6 of 11 FIR No.250/11 State Vs. Sarvesh Kumar PS Palam village search the girl and also inquired from her friends. He also flashed WT message, issued hue and cry notice, letter sent to NCRB and for publication. On 13.11.2011, the complainant Sh. Upender provided age certificate of missing girl and also stated that one boy namely Sarvesh had kidnapped his daughter. Thereafter, he inquired from Radhey Shyam brother in law of Sarvesh who told him that the girl was with Sarvesh in UP and he also provided the address of the village Puran Ganj Rai Bareli UP. He also ensured him that Sarvesh and the girl Akanksha will appear before the police on their own after one or two days. On 15.11.2011, Sarvesh and girl Akanksha appeared in the police station Palam Village. He prepared the recovery memo of the girl Ex.PW2/A in the presence of lady Ct. Rekha and the girl was got medically examined from DDU hospital. The girl was also counseled by NGO personnel in the PS. Accused Sarvesh Kumar was arrested vide arrest memo Ex.PW7/A and his personal search was conducted vide memo Ex.PW7/B and accused was released on bail. The girl was produced before the Ld. ACMM, Dwarka and he moved an application for recording the statement of girl u/s 164 Cr.PC which is Ex.PW7/C. The statement of the girl was recorded u/s 164 Cr.P.C. before the Ld. Duty MM and he collected the copy of the statement. Thereafter the girl was produced before the CWC on the next day and she was sent to Nari Niketan. The age of the girl was verified from her school. He recorded the statements of witnesses. He prepared challan and filed the same in the Court. PW7 correctly identified the accused in C No. 129/2 U.ID No. 02405R0127712012 Page No. 7 of 11 FIR No.250/11 State Vs. Sarvesh Kumar PS Palam village the Court.
In cross examination he affirmed that the missing girl namely Akanksha appeared before him in the police station palam village and she told him that she herself left her house and she was not taken by the accused forcibly. He denied the suggestion that the girl stated before him that she herself put pressure on Sarvesh to take her. He affirmed that he has not visited any place outside Delhi during his investigation to ascertain where the girl was staying with the accused. He stated that during his investigation, the missing girl namely Akanksha told him that she had stayed for about two months at Lucknow, UP. He stated that no raid was conducted by any of the police officials for recovery of the missing girl Akanksha. He affirmed that he came to know that missing girl had voluntarily eloped with the accused after they both appeared before him in the police station during investigation. He denied the suggestion that he has not investigated the present case properly and instead of filing cancellation, he preferred charge sheet against the accused in the Court. He denied the suggestion that accused was falsely implicated in the present case.
10. PW8: Dr. G Adhikari deposed that on 15.11.2011 one girl namely Akanksha Sharma d/o Upender aged 16 years was brought for the medical examination in the hospital by Lady Constable Rekha. The girl was examined by Dr. Nitin Seth vide MLC No. 23491/11. The girl had refused her internal examination. He C No. 129/2 U.ID No. 02405R0127712012 Page No. 8 of 11 FIR No.250/11 State Vs. Sarvesh Kumar PS Palam village identified the signatures of Dr. Nitin Seth at point B on the MLC Ex.PW8/A and his name at point A.
11. PW9 proved on record the statement u/s 164 Cr.P.C. of the victim Akanksha Ex.PW 9/A. Statement of accused and defence
12. After closure of prosecution evidence the statement of accused u/s 313 Cr.P.C. was recorded on 16.07.2015. All the incriminating evidence was put to the accused, distinctly, specifically and separately to afford him an opportunity to explain the circumstances so put to him, he pleaded his innocence. He did not lead any evidence in his defence to prove his plea of innocence.
Arguments and appreciation of evidence in the light of legal propositions
13. Ld. Counsel for the accused has submitted that accused is innocent and in fact it was the girl who wanted to marry him and asked him to marry her which prompted them to leave the house as her parents were against their marriage. It is also submitted that accused never enticed or allured the victim Akanksha for leaving her house. It is also submitted that accused is a victim of circumstances and he unknowingly kept on doing what Akanksha asked him to do. Ld. Counsel has submitted that evidence does not suggest any allurement or enticement by the accused.
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14. On the other hand, Ld. APP for the State submits that there is enough evidence against the accused showing his complicity with the alleged crime.
15. Arguments heard. Record perused carefully.
Conclusion
16. With respect to the preliminary argument raised on behalf of accused that accused was innocent and never enticed or allured the victim Akanksha, to this argument, it is observed that the testimony of PW1 after being gleaned, show that she voluntarily left the home, accompanied the accused for marriage and she remained with him in Lucknow for about two months with his family and she also solemnized marriage with him and her version that accused never extended any threats to her and treated her nicely through out show lack of allurement and enticement on the part of accused. Her testimony also reveals that she after coming into contact with accused decided to marry him and she voluntarily eloped with him. Her testimony does not show that she was being enticed or allured by the accused before she went out of the home of her guardian/parents. The testimony of PW6, who is father of the victim Akanksha reveals that he had the inkling about the elopement of his daughter and for that reason he did not make a call to police on the date his daughter went missing and only after C No. 129/2 U.ID No. 02405R0127712012 Page No. 10 of 11 FIR No.250/11 State Vs. Sarvesh Kumar PS Palam village 34 days he informed the police about his daughter. His testimony that he did not see Akanksha going with accused Sarvesh go to show that accused was not in any way instrumental for taking her out from his guardianship. His testimony also reveals that Akanksha left her home with her friend on the date she went missing also show that she was not accompanied by the accused at the time she left him and later she joined the accused.
17. In this case, the testimony of prosecutrix Akanksha is relevant along with her father who is PW6. Prosecutrix was 16 years of age as per the record produced before the Court regarding her date of birth and record also suggest that accused was 19 at the time of offence. As such, both of them decided to marry unmindful of the consequences of their act. Prosecutrix Akanksha left her home voluntarily before joining the accused and remained happily after the marriage in his house at Lucknow with his parents and again came back voluntarily to the police show lack of culpability on the part of accused. Accordingly, accused is accorded benefit of doubt and he is acquitted of the charges u/s 363 IPC. He is directed to furnish bonds in a sum of Rs. 25,000/ in terms of Section 437A of Cr.P.C..
Announced in the Open Court (DR. PANKAJ SHARMA) today on this 17th day of July, 2015 Metropolitan Magistrate01:
Dwarka : New Delhi C No. 129/2 U.ID No. 02405R0127712012 Page No. 11 of 11