Delhi District Court
State vs Vishnu Kr Yadav on 18 September, 2024
IN THE COURT OF SHRI ANUJ KUMAR SINGH
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-02
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
CNR No. DLCT02-009051-2015
FIR No.244/2009
PS: NDRS
State Vs. Vishnu Kumar Yadav
U/s: 363 IPC
JUDGMENT
(a) CIS No. 299558/2016
(b) Date of offence 15.07.2009
(c) Complainant Neeraj Lamba
(d) Accused Vishnu Kumar Yadav, S/o
Rajeshwar Singh Yadav, R/o
V.P.O. Awthahi, PS Bhawar Kol,
Dist. Gazipur (U.P.)
(e) Offence 363 IPC
(f) Plea of accused Pleaded Not guilty
(g) Final Order Acquitted
(h) Date of Institution 24.03.2015
(I) Date when judgment 23.08.2024
was reserved
(j) Date of judgment 18.09.2024
1. Vide this judgment, this Court shall dispose of the present case u/s 363 Indian Penal Code.
2. The story of the prosecution is that on 15.07.2009 at time unknown, in Coach no.C-5, in moving Train i.e. Swaran Shatabdhi Express, the accused Vishnu Kumar Yadav had forcibly removed the minor son of the complainant from the FIR No. 244/2009 PS : NDRS State Vs Vishnu Kumar Yadav Page No. 1 of 10 lawful guardianship of his parents and without their consent and thus accused was tried for the offence punishable under Section 363 IPC. After completing the formalities, investigation was carried out.
3. Charge sheet was filed against the accused in the Court. Copy of charge sheet and other scrutable documents were supplied to the accused and thereafter charge under Section 363 IPC was framed against him vide order dated 17.12.2019 to which he pleaded not guilty and claimed trial.
4. Record transpired that during course of trial, accused admitted FIR No.244/2009 dated 15.07.2009 PS NDRS as Ex. A- 1 and Zero FIR dated 15.07.2009 PS GRP Ambala Cant. as Ex.A-2. In view of the admission made, the evidence of duty officer was dispensed with.
5. In order to prove the charge against the accused, the prosecution examined six witnesses:-
6. PW-1/Neeraj Lamba (complainant) deposed that he does not remember exact date. However, in the year 2009, he was travelling with his family from Delhi to Amritsar. They were about 25 people travelling together in the coach in the train. He made his son about 2 Years to sit in a seat and they were arranging their luggage. After some time, when he checked his son, he did not find him there. He did not see who took away his son from his custody. He heard the noises of the people that they FIR No. 244/2009 PS : NDRS State Vs Vishnu Kumar Yadav Page No. 2 of 10 apprehended one person with his son. The train had already started moving. They handed over said person to the TTE and further said person handed over to RPF officials at Ambla Cant. He cannot identify the accused.
During his cross-examination by ld. APP for the State, PW1 denied the suggestions that the date of incident 15.07.2009 or that they were travelling in coach no. C5 and their seats were from 53 to 58 or that the PNR Number of ticket was 2261870953. He denied the suggestions that he apprehended the accused with the help of his family members or that his son was rescued from accused or that they de-boarded at Ambala Cant. Railway Station where he gave his complaint which is Ex PW1/A, bearing his signatures at point A or that he again visited the PS NDRS and met with IO and gave his supplementary statement. He further denied the suggestions that he informed the name of accused as Vishnu Kumar Yadav to IO or that accused was arrested in his presence.
Witness was confronted with arrest memo Ex PW1/B where he identified his signatures at point A and submitted that his signatures were obtained on blank papers. Attention of witness was drawn towards accused who was present before the Court today. However, the witness failed to identify the accused.
Witness further denied the suggestions that he is intentionally not identifying the accused as he has been won over by accused or that he is deposing falsely in order to save accused from criminal liability.
FIR No. 244/2009 PS : NDRS State Vs Vishnu Kumar Yadav Page No. 3 of 10
7. PW-2/Retd. SI Sohan Lal deposed that on 15.07.2009, he was posted as SI at PS NDRS. On that day, SI Satbir Singh GRP Ambala and Ct. Bhudev of RPF, New Delhi came to PS NDRS and handed over copy of FIR no. 42 dated 15.07.2009 PS GRPF Ambala alongwith accused Vishnu Kumar Yadav before the then SHO. The then SHO instructed to convert the above said zero FIR to regular FIR and marked the said case for further investigation to him. On the basis of statement of the complainant mentioned in the above said zero FIR, present FIR was registered. Thereafter, accused Vishnu was arrested vide memo Ex. PW 2/A bearing his signature at point X. He recorded the statement of witnesses. Accused was released on bail. He recorded the statement of complainant. After completion of investigation, he filed the charge sheet before the Hon'ble Court. Witness correctly identified the accused present in the Court.
During his cross-examination, PW2 deposed that he did not visit the spot of the incident at Ambala. No public person had joined the investigation. No CCTV footage was found during the investigation. He denied the suggestions that he did not conduct the investigation fairly or that accused is falsely implicated in the present matter.
8. PW-3/Bhudev Yadav, MCM/Fitter deposed that on 15.07.2009, he was posted as HC with RPF Post New Delhi Railway Station. On that day, his duty was in Swarn Shatabdi Express Train as In-charge, Escort Duty from New Delhi to Amritsar. At about 07:30 am, the train reached near NDRS Yard, he saw accused Vishnu Kumar Yadav lifted a child and started to FIR No. 244/2009 PS : NDRS State Vs Vishnu Kumar Yadav Page No. 4 of 10 run. However, he was over powered by the passengers and he was apprehended. The train stopped at Ambala Cantt. Railway Station. The accused was handed over to GRP Ambala Cantt. Thereafter, he alongwith other staff of GRP Ambala brought accused to GRP NDRS and handed over to the police officials. IO recorded his statement. Witness correctly identified the accused present in the Court.
During his cross-examination, PW3 deposed that the escort staff returns to duty with the train itself. He had made his departure entry which is Ex.PW3/DA. He denied the suggestion that he was not on duty on that day. He saw accused taking away the child and the accused immediately seeing her throw the child on the seat and started to run away and thereafter accused was over powered. He denied the suggestion that he was not present at the spot. He voluntarily stated that if he was not in the train how come he reached Ambala Cantt. Station and returned with accused to GRP NDRS. He denied the suggestion that he was not present in the said coach from where the accused was apprehended while throwing the child.
9. PW-4/SI Vinod Kumar (GRP) deposed that on 15.07.2009, he was posted as HC at Ambala Cant GRP. On that day, Bhudev Singh, In-charge, RPF handed over to the SHO one complaint along with accused Vishnu Kumar Yadav. In the complaint, it was mentioned that accused had kidnapped the child of the complainant aged about two and half years and he was running from the spot and apprehended by Bhudev Singh Yadav. This incident was of New Delhi Railway Station due to which Zero FIR No. 244/2009 PS : NDRS State Vs Vishnu Kumar Yadav Page No. 5 of 10 FIR was registered and accused was handed over to him, SI Satbir, Ct. Suleman and RPF In-charge Bhudev Singh. They all took the accused person to Delhi and produced him before the PS New Delhi Railway Station. IO arrested the accused Vishnu Kumar Yadav vide Arrest Memo Ex.PW4/A bearing his signatures at point A. IO recorded his statement u/s 161 CrPC. Witness correctly identified the accused present in the Court.
During his cross-examination, PW4 denied that complainant refused to make any complaint by saying that actually accused had took his son and handed over to him from the gate of the train or that accused was falsely implicated in the present case at the instance of RPF Incharge Bhudev Singh.
10. PW-5/ASI Suleman (GRP) deposed that on 15.07.2009, he was posted as Ct. at Ambala Cant GRP. On that day, Bhudev Singh, In-charge, RPF of Swaran Satabi Express Train handed over to the SHO one complaint along with accused Vishnu Kumar Yadav. In the complaint, it was mentioned that accused had kidnapped the child of the complainant aged about two and half years and he was running from the spot and apprehended by Bhudev Singh Yadav. This incident was of New Delhi Railway Station due to which Zero FIR was registered and accused was handed over to him, SI Satbir, HC Vinod Kumar and RPF In- charge Bhudev Singh. They all took the accused person to Delhi and produced him before the PS New Delhi Railway Station. IO arrested the accused Vishnu Kumar Yadav vide Arrest Memo already Ex.PW4/A bearing his signatures at point B. IO recorded FIR No. 244/2009 PS : NDRS State Vs Vishnu Kumar Yadav Page No. 6 of 10 his statement u/s 161 CrPC. Witness correctly identified the accused present in the Court.
During his cross-examination, PW9 denied the suggestion that complainant refused to make any complaint by saying that actually accused had took his son and handed over to him from the gate of the train or that accused was falsely implicated in the present case at the instance of RPF In-charge Bhudev Singh.
11. PW-6/Retd. SI Satbir Singh deposed that on 15.07.2009, he was posted as SI with GRP Ambala Cantt. On that day, train No. 2029, Shatabdi Express, came to Platform No. 6, Ambala Cantt. Railway Station. The train Escort In-charge, HC Bhudev alognwith complainant met them at platform No. 6 alongwith accused Vishnu Kumar Yadav and told him that accused has kidnapped his minor son. However, the accused was apprehended by the public persons and minor son of complainant was rescued. Complainant gave a complaint to Insp. Ishwar Singh, GRP, Ambala Cantt. Insp. Ishwar Singh prepared a rukka which is Ex. PW6/A bearing signatures of Insp. Ishwar Singh at point A. Insp. Ishwar Singh got registered zero FIR and investigation was marked to him. Accordingly, he arrested accused vide memo already Ex. PW1/A bearing his signatures at point B. Thereafter, accused was brought to GRP, New Delhi Railway Station and he handed over accused alongwith prepared documents to the IO of the present case. IO recorded his statement. Witness correctly identified the accused present in the Court.
FIR No. 244/2009 PS : NDRS State Vs Vishnu Kumar Yadav Page No. 7 of 10 During his cross-examination, PW6 denied the suggestion that without verifying the facts and circumstances he had falsely arrested the accused and falsely implicated him in the present case. He further denied the suggestions that he did not hand over accused to IO of present case or that he never saw accused or that he is identifying the accused at the instance of IO.
12. The prosecution evidence was closed vide order dated 03.06.2024 and statement of accused was recorded vide order dated 27.06.2024 wherein accused pleaded innocence and opted not to lead DE.
13. I have heard the arguments addressed by Sh. Vishal Gupta, Ld. APP for State and Sh. Naveen Gaur and Shri Vijay Kumar, Ld. counsels for accused and carefully perused the documents on record.
14. It is submitted by ld. APP for State that prosecution has proved its case beyond all reasonable doubts and prosecution witnesses correctly identified accused persons and no material contradiction came out in their cross examination.
15. Ld. counsel for accused has argued that there are material contradiction in the testimony of prosecution witnesses and accused has been falsely implicated by the police official and no independent person was made witness in the present case.
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16. In order to prove the charge against the accused u/s 363 IPC, the prosecution needs to prove that the accused took the minor son of the complainant out of his keeping without the consent of the complainant.
17. Before proceeding further, this court needs to discuss the relevant legal propositions applicable on to the facts of the case. It is a settled proposition of criminal law that the prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence & that in order to prove its case on judicial file, the prosecution is supposed to stand on its own legs whereby it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused. It is no longer Res Integra that accused is entitled to benefit of every reasonable doubt(s) appearing qua the material facts of the prosecution's story whereby such reasonable doubt(s) entitles the accused to acquittal.
18. In order to prove case against the accused, prosecution needs to prove that the accused took minor i.e. son of the complainant from his legal guardianship without his consent. The testimony of the complainant/PW1 Neeraj Lamba is of utmost importance to decide the present case. Complainant Neeraj Lamba during deposition before the Court turned hostile. He deposed that in the year 2009, he was travelling with his family from Delhi to Amritsar. He made his son sit in a seat and he was arranging luggage. After sometime when he checked his son, he did not find him. He did not see who took away his son from his FIR No. 244/2009 PS : NDRS State Vs Vishnu Kumar Yadav Page No. 9 of 10 custody. He denied the suggestion that he apprehended accused Vishnu Kumar Yadav with the help of his family members. He also denied the suggestion that his son was rescued from the accused. He also failed to identify the accused. Since in the testimony of the complainant, it did not come on record that it was the accused who took away his son from his legal guardianship, ingredients of Section 363 IPC are not made out. Testimony of PW3 Bhudev Yadav is of no help to prosecution despite his seeing that accused Vishnu Kumar Yadav lifted the son of the complainant and started to run. In order to prove the case, it was essential to prove by prosecution that person (in the present case son of the complainant) was taken away by accused from legal guardianship of the complainant. Other witnesses are witnesses of investigation. They do not prove the guilt of the accused. It is settled law that where two versions are probable, the version beneficial to the accused shall be preferred. Due to hostile testimony of the complainant, benefit of doubt is given to the accused and he is acquitted of the offence u/s 363 IPC.
19. In view of above, in my humble opinion, prosecution has failed to prove its case beyond all reasonable doubt. Accordingly, accused Vishnu Kumar Yadav is acquitted for the offence u/s 363 IPC.
Announced and Signed in the Open Court
on 18.09.2024 ANUJ Digitally signed
by ANUJ KUMAR
KUMAR SINGH
Date: 2024.09.20
SINGH 16:36:31 +0530
(ANUJ KUMAR SINGH)
Additional Chief Metropolitan Magistrate-02 Central/Tis Hazari Courts/Delhi (m) FIR No. 244/2009 PS : NDRS State Vs Vishnu Kumar Yadav Page No. 10 of 10