Delhi High Court
Sarvesh Kumar vs State (Govt. Of Nct Delhi) on 30 October, 2018
$~14 (R-38 Part B)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on:- 30th October, 2018
+ CRL. APPEAL No. 22/2002
SARVESH KUMAR ..... Petitioner
Through: Mr. U.A. Khan & Mr. Shahrukh
Khan, Advs. with appellant in
person.
versus
STATE (GOVT. OF NCT DELHI) ..... Respondent
Through: Mr. K.S. Ahuja, APP for the
State with SI Sonu PS
Seemapuri, Delhi.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. On the basis of report (charge-sheet) under Section 173 of the
Code of Criminal Procedure, 1973 (Cr.P.C) submitted, upon
conclusion of investigation into first information report (FIR) no.
62/2000 of police station Seema Puri, the appellant was put on trial in
sessions case no. 100/2001, on the charge for offences under Sections
366 and 376 of Indian Penal Code, 1860 (IPC), the gravamen whereof
was that on 28.02.2000 he had kidnapped the prosecutrix girl with
intent to compel her for marriage and thereafter had committed rape
against her during the period 28.02.2000 to 15.03.2000. By judgment
dated 13.11.2001 he was held guilty and convicted, as charged, and by
order passed on the same date he was sentenced to rigorous
imprisonment for five years on the first count and for seven years on
the second count with fine of Rs. 1,000/- each.
2. Feeling aggrieved, the convict came to this court with the
present appeal challenging the above-said judgment of conviction and
order on sentence.
3. The trial court record would show that the prosecutrix (PW-7)
was a student of 10th standard in a government girl school during the
relevant period. The school records (Ex.PW-8/B), on the basis of
which her age has been certified (Ex.PW-8/A), revealed her date of
birth to be 15.11.1981. There is no evidence gathered or adduced to
the contrary, such school records having been proved by the vice
principal of the school (PW-8) at the trial. In these circumstances, the
prosecution does not refute the fact that the prosecutrix was more than
18 years old on the crucial date, her age having been indicated even by
her mother (PW-2) in the initial input vide DD no. 46/B (Ex.PW-3/A)
and by the FIR (Ex.PW-4/A) to be 18 - 19 years.
4. The evidence of the prosecution would show that on
29.02.2000, PW-2, the mother of the prosecutrix, had made a report
vide DD no. 46/B (Ex.PW-3/A) indicating that her daughter had left
home at about 11.am. for school but had not returned. The report was
logged at 12.15 a.m., the mother stated that the girl was not traceable
that she had no suspicion about involvement of any specific
individual. The girl remained untraceable and, against this
background, on 02.03.2000 i.e. two days after she having gone
missing, the FIR (Ex.PW-4/A) was lodged for investigation into
offence under Section 366 IPC, suspicion having been expressed about
involvement of the appellant.
5. It is the prosecution's case that during the course of
investigation, the prosecutrix (PW-7) had returned home and her
statement (Ex.PW-7/DX) under Section 161 Cr.P.C. was recorded,
this followed by her statement (Ex/.PW-7/A) under Section 164
Cr.P.C. According to the version of the prosecutrix, forming part of
these statements, the appellant being the younger brother of her
Phoopha (husband of the father's sister) had accosted her on
28.02.2000 when she was going to the school and had taken her away
in a three wheelor scooter (TSR) to Gurgaon on the pretext of paying a
visit to her Bua (father's sister) promising to bring her back home
soon. She alleged that, on 29.02.2000, the appellant had taken her to
the court premises in Ghaziabad where, after getting her signatures, he
had told her that they had got married and then he brought her to
Gurgaon where he introduced her to others as his wife. She also stated
that, in Gurgaon, the appellant committed sexual intercourse against
her will several times. She stated that she had been seduced by the
appellant, without her consent, and that finding opportunity, she had
escaped and returned home.
6. During the course of trial, appearing as a witness (PW-7), the
prosecutrix narrated the above-mentioned version adding certain facts
which are material improvements, there being no basis or foundation
in such regard in her original version. She testified that when she was
going to school, the appellant had met her with the TSR which was
driven by his elder brother Rakesh. She stated that she was offered a
lift in the TSR which she had boarded. The TSR had, however,
started moving in a direction other than that of her house. She alleged
that when she objected to this, she was told that the appellant, and his
brother, had some work and that after finishing the same they would
return. She stated that she was taken to an unknown place which she
later learnt to be the city of Gurgaon. She also spoke about her
signatures, and photographs, having been taken and upon her refusal,
she having been given threats that she and her father would be killed.
7. Noticeably, all the above facts concerning presence of the
brother of the appellant as the driver of the TSR, the pretext of going
to Gurgaon for some work, the threats extended for her signatures and
her photographs to be taken had not been mentioned by her during the
course of investigation. These are material improvements which raise
question marks as to the credibility of her testimony, particularly when
seen against the fact that she was admittedly signatory to a document
(mark PW-7/DX) and the manner in which she is shown to have posed
with the appellant for at least two photographs (mark D-1 & 2).
8. The defence of the appellant during the trial was that the
prosecutrix was involved in a love affair with him and that she had
accompanied him of her own free will, both intending to get married.
The prosecutrix, as noted earlier, had come of age, prior to she being
reported missing on 29.02.2000. Her mother (PW-2) has admitted that
the appellant used to visit her household frequently.
9. The prosecution case that the prosecutrix had escaped from the
control and custody of the appellant to return home on 15.03.2000
leading to her statement being recorded first by the police, and then by
the Metropolitan Magistrate, before arrest of the accused at her
instance from a public place, is rendered false by the statement of PW-
2 (mother of the prosecutrix) who testified that she was present in the
police station when both the appellant and the prosecutrix had come
there on their own. If that were the correct version, the story of the
prosecutrix having availed of an opportunity to escape from wrongful
confinement is rendered untrue.
10. There is no explanation worth the name given by the
prosecutrix as to why she had meekly gone in the TSR from Delhi all
the way to Gurgaon without lodging a protest. There is no clarity as to
where the prosecutrix was kept by the appellant during the period
28.02.2000 to 15.03.2000. There is no explanation offered as to why
the prosecutrix could not lodge a protest, or raise alarm, at the place
where she was kept in Gurgaon or at the time of visit to Ghaziabad
Court Complex or on the way to Ghaziabad and return from there to
Gurgaon.
11. The defence plea that the prosecutrix had gone with the
appellant out of her own free will and volition cannot be trashed it
being highly probable. The version of the prosecutrix, against this
backdrop, does not inspire confidence.
12. For the foregoing reasons, and in the circumstances, the
judgment of conviction returned by the trial court cannot be upheld.
The said judgment and consequent order on sentence are, thus, set
aside. The appellant is acquitted. The bail bonds stand discharged.
R.K.GAUBA, J.
OCTOBER 30, 2018/nk
