Delhi District Court
State vs .Dharmender Singh on 25 September, 2013
1
IN THE COURT OF MS. SHAIL JAIN;
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE
NDPS02 (CENTRAL) DELHI
S.C. NO : 92/12
STATE
versus
Dharmender Singh
s/o Shri Dhyan Pal Singh
R/o Village Ralthan, PO Bishald, Tehsil and District
Pouri Garwal, Uttrakhand.
FIR No. : 138/12
Offence U/S : 363/366 IPC
Police Station : Burari
DATE OF INSTITUTION : 25.09.2012
JUDGMENT RESERVED ON : 11.09.2013
DATE OF JUDGMENT :25.09.2013
JUDGMENT
1. The accused namely, Dharmender s/o Dhyan Pal Singh has been prosecuted for offences punishable u/s 363/366 IPC vide FIR No. 138/12 P.S. Burari.
2. It is the case of the prosecution that on the intervening night of 04.06.201205.06.2012 from A1/58, S.C. No. 92/12 1 of 19 pages State Vs .Dharmender Singh 2 Himgiri Enclave Burari, Delhi accused kidnapped prosecutrix d/o Shri Deepak Gupta from his lawful guardianship of her parents with intention to induce/compel her to marry him. The FIR was recorded on the statement of Shri Deepak Gupta, and accused was arrested. Statement of other witnesses were recorded. On completion of investigation, accused was charge sheeted.
3. On 12.10.2012, the accused was charged for having committed offences punishable u/s 363/366 IPC to which he pleaded not guilty and claimed to be tried.
4. Prosecution examined 11 witnesses in all to bring home the guilt of the accused. The substance of prosecution evidence is as follows :
5. PW1 HC Shish Pal is the duty officer. He had recorded the FIR Ex.PW1/A. He had proved the rukka as Ex.PW1/B.
6. PW2 Narender Singh is the MHC(M) Burari. He had stated that on 07.06.2012, he was posted as Malkhana Mohrar MHC(M) at PS Burari. On that day, SI Dharmender handed over him one pulanda, two envelopes and three sample seals having seal of CMO Aruna Asaf Ali Govt Hospital, NCT of Delhi) for depositing in the Malkhana . He made relevant entry in register no.
S.C. No. 92/12 2 of 19 pages State Vs .Dharmender Singh 3 19 at serial no. 1227/12. On 12.06.2012, all exhibits were sent to FSL through Ct Suresh vide RC no. 78/21/12 and he made the relevant entry in register no. 19 at same serial number and Ct Suresh handed over him the FSL receipt after depositing the same at FSL. On 18.06.2012, again SI Dharmender deposited personal search articles of accused Dharmender in the Malkhana. He made relevant entry in register no. 19 at serial no. 1273/12. On 19.06.2012, SI Dharmender also deposited one parcel containing blood sample of accused Dharmender and one sample seal having seal of CMO, AAA Govt Hospital in the Malkhana. He made relevant entry in register no. 19 at serial no. 1276/12. The said parcel and sample seal were sent to FSL Rohini on 22.06.2012 through Ct Vinod Vide RC no. 85/21/12 and he made relevant entry in register no. 19 at serial number 1276/12 and Ct Vinod handed over him the FSL receipt after depositing the same at FSL. The copy of original entry no. 1227/12 is Ex.PW2/A (OSR), copy of entry no. 1273/12 is Ex.PW2/B (OSR) and copy of entry no. 1276/12 is Ex.PW2/C (OSR). The copy of Road certificate no. 78/21/12 is Ex. PW2/D (OSR) and copy of RC no.
85/21/12 is Ex.PW2/E. The copy of FSL receipts are
Ex.PW2/F and 2/G respectively. During the period, the
S.C. No. 92/12 3 of 19 pages
State Vs .Dharmender Singh
4
abovesaid sealed pulandas remained in his custody,
nothing was tampered or allowed to be tampered with it.
7. PW3 is the prosecutrix. She had stated that on the relevant day, she received a call from the accused in the night and he told her that he loves her. He further told that he wanted to get married to her. She refused but he insisted and told that he would come upstairs to her house. She got scared and came down at about 1111.30 p.m and the accused met her . Then on the suggestion of the accused, they boarded an auto. Thereafter, they boarded a bus from a bus stand. They went to Chandigarh to the house of elder sister of the accused. The sister of the accused told him that he should escort her back to her house lest she would inform the police. Then they left the house of the sister of the accused and went to the house of a friend of the accused where elder brother of the accused and another friend of the accused came. They also told the accused to escort her back to her parents house. Thereafter, the brother of the accused took them to the bus stand and they took a bus for Delhi. They came to Delhi and she got down near the Nirankari Srover. From there, she reached a temple near her house. She entered her house through the stairs of another house which was under construction. Police personnel S.C. No. 92/12 4 of 19 pages State Vs .Dharmender Singh 5 also came and she was taken for medical examination. She was medically examined. Police recorded her statement, Ex.PW3/A which bears her signature at point A. Later on she was also produced before Ld MM where her statement was recorded. The witness identified her signature at point X on each page on Ex.PW3/B (3 pages) (statement of prosecutrix u/s 164 Cr.P.C) and stated that she signed the same when her statement was recorded by Ld MM. Her statement was recorded in Hindi and she signed the same after reading.
8. PW4 Shri Deepak Gupta is complainant. He is father of prosecutrix. He had stated that he is doing a private job. He is supervisor in a company which manufactures Nevon fabric. On date of occurrence, he returned from his job at about 09.3010.00 p.m. he resides in the aforesaid house with his mother, wife, daughter and son Partik Gupta. After taking dinner, they went to bed. At about 11.3012.00 mid night, he got up to drink water and switched on the light. He found that her daughter was not on her bed. They all sleep in the same room. He searched for her in his house, on the roof and also outside. When he did not find her, he again searched for her inside his house but she was not there. He also found that the mobile phone no. 8505928953 which is kept at their S.C. No. 92/12 5 of 19 pages State Vs .Dharmender Singh 6 home, was missing. He called on this number but it was switched off. Then he woke up his neighbour Mr Ashok on whose vehicle the accused Dharmender was a cleaner. Mr Ashok was driver on a vehicle owned by a company and accused was the cleaner. Mr Ashok had left the job and had returned the vehicle on 03.07.2012. He told him that he had asked the accused also to return to his village but he requested that he needed some time to collect his belongings and therefore Mr Ashok permitted him to stay at his house. He told Mr Ashok that her daughter was missing and inquired about the accused. Mr Ashok told him that at about 11.3012.00 night, he had dropped the accused on the Byepass to take a bus to his village. He asked Mr Ashok to call the accused on his mobile phone. Phone call was made by Mr Ashok at about 01.3002.00 a.m. The accused picked up the phone and started behaving as if he was intoxicated. He was not giving clear answer regarding his position. On his request, Mr Ashok asked him whether he was accompanied by anyone and he told that he was alone. He also told that he was in Haridwar. After some time, the accused switched off his phone. He tried to find the accused with the help of his neighbour Mr Ashok but could not locate him. He tried to find the address of the accused but did not succeed. On S.C. No. 92/12 6 of 19 pages State Vs .Dharmender Singh 7 06.07.2012, he went to the PS Burari and lodged the FIR. Police recorded his statement Ex.PW4/A . he accompanied the police team to different places including R.K.Puram. The police tried to get the ID proof of the accused but could not get it. Thereafter, police got the CDR of mobile phone number 8505928953 and the location was found near Haridwar. They started making preparations to leave for Haridwar in the night. They left for Haridwar and stayed at Modi Nagar. On 07.07.2012, they were at Modi Nagar at lunch time, the location was showing as Old Delhi Railway Station. On 07.07.2012, at about 01.00 mid night he received information from his house that her daughter had reached the house. Then he had taken her daughter to PS where police recorded her statement and prepared memo Ex.PW3/A bearing his signature at point B. His daughter was also taken to the hospital and was medically examined there. The statement of his daughter was also recorded by the Ld. MM. On 17.07.2012, he alongwith police officials went to Garhi and when they were coming back from that place, accused was noticed near Burari and he was apprehended and he identified him. He was arrested vide memo Ex.PW4/B and his jama talashi was conducted vide memo Ex.PW4/C bearing his signature at point A on S.C. No. 92/12 7 of 19 pages State Vs .Dharmender Singh 8 each. Accused made a disclosure statement Ex.PW4/D bearing his signature at point A.
9. PW5 Ct Suresh Kumar had stated that on 12.06.2012, he was posted at PS Burari. On the day, on the directions of the IO he took the exhibits of this case FIR alongwith FSL form of this case FIR from MHC(M) vide RC No. 78/21/12 Ex. PW 2/D and deposited the same in FSL, Rohini vide receipt Ex. PW2/F and gave the receipt to MHC(M) on reaching back at PS. During the tenure the sealed pulanda remained with him, nothing was tampered or allowed to be tampered with it. His statement was recorded by the IO.
10. PW6 Ct Guddi Baliyan had stated that he does not remember the exact date but he joined the investigation of this case FIR with SI Dharmender. The prosecutrix was taken from rainbow house Kashmere Gate and thereafter they came to Tis Hazari court where the statement u/s. 164 Cr. P.C. of the prosecutrix got recorded. Thereafter the prosecutrix was taken to Kingsway Camp and produced before members of CWC. The prosecutrix was then handed over to her father Deepak Gupta. The IO also recorded my statement.
11. PW7 Ct Sombir Singh had stated that on 05.06.2012 he was posted at PS Burari. On that day at about 1:40 PM S.C. No. 92/12 8 of 19 pages State Vs .Dharmender Singh 9 the Duty Officer handed over him the copy of FIR and original rukka and on reaching at Burari red light, he handed over the same to SI Dharmender. Thereafter, they went to ISBT Kashmere gate and Old Delhi Railway Station for search of the prosecutrix but could not trace her. They returned back to PS.
12. PW8 Ct Sudesh had stated that on 06.06.2012 he was posted at PS Burari. On that day he joined the investigation of this case FIR with SI Dharmender. They left the PS for Pauri Garhwal and when they reached at Modi Nagar they returned back for Delhi. Father of prosecutrix was also with them and when they were coming back, the father of the prosecutrix called at his residence and it was informed that prosecutrix had returned to her house. Accordingly, they reached the house of the prosecutrix and she was found present there. IO prepared memo Ex. PW 3/A bearing his signature at point C. The prosecutrix was taken to hospital for medical examination. After the medical examination the doctor in the hospital handed over the sealed exhibits of this case FIR to SI Dharmender and he seized the same vide memo Ex. PW 8/A bearing my signature at point A. The prosecutrix was left at Rainbow Home Kashmere Gate. His statement was recorded by IO.
S.C. No. 92/12 9 of 19 pages State Vs .Dharmender Singh 10
13. PW9 Satbir Singh had stated that on 17/06/2012 he was posted at PS Burari. On that date he joined the investigation the case with SI Ajay Singh. They went to Pauri Garwal and tried to search the accused by raiding his native place but could not trace him. On 18.6.2012 they returned to Delhi. He had further stated that at about 10.15 p.m when they were at main Road Burari, the complainant pointed out towards the accused who was standing the road side. Accused was apprehended at the instance of the complainant and he was arrested. Accused made disclosure statement. Accused was medically examined . After medical examination doctor had handed over sealed blood sample of accused to IO and IO seized the same vide memo Ex.PW9/A. After medical examination of IO, accused was locked up at PS Civil Lines. His statement was recorded by the IO.
14. PW10 Shri Amarnath Singh, Alternate Nodal Officer had stated that as per record mobile no 8505928953 is in the name of Deepak Gupta. Copy of CAF is Ex.PW10/A, , copy of voter ID of Deepak Gupta is Ex.PW10/B, copy of CAF is Ex.PW10/C and copy of ID card of Dharmender is Ex.PW10/D. CDR of mobile phone is Ex.PW10/E, . He had further stated that as per record mobile no. 9012827110 is in the name of Dharmender Singh and copy of CAF is S.C. No. 92/12 10 of 19 pages State Vs .Dharmender Singh 11 Ex.PW10/G, Copy of Voter I card of Dharmender is Ex.PW10/H, CDR of mobile no is Ex.PW10/J and certificate u/s 65 B of Indian Evidence Act is Ex.PW10/K.
15. PW11 SI Dharmender Kumar is the Investigating Officer of the case. He had stated that on 05.06.2012 he recorded the statement of the complainant Shri Deepak Gupta vide Ex.PW4/A. On the complaint of complainant, he got the case registered. On 06.06.2012 he along with complainant and police party went for the search of the accused for Kotdwar. They returned back and complainant informed him telephonically that victim had returned to the house. He recorded the statement of the prosecutrix and was taken to the hospital for medical examination. The prosecutrix was produced before Ld Metropolitan Magistrate and got recorded her statement Ex.PW11/A u/s 164 Cr.P.C. He further stated that on 17.06.2012 he along with SI Ajay Negi, HC Jagbir, Ct Satbir and complainant Deepak Gupta went to Pauri Garwal Uttrakhand and tried to search the accused Dharmender Singh but could not trace him. On 18.06.2012 when they returned to Delhi. At about 10.15 p.m. when they were at Main Road Burari the complainant pointed out towards the accused and accused was apprehended vide arrest memo Ex.PW4/B. He conducted the personal search of S.C. No. 92/12 11 of 19 pages State Vs .Dharmender Singh 12 accused vide memo Ex.PW4/C. The accused was sent to hospital for medical examination. During investigation he collected School Certificate Ex.PW11/B of victim wherein her date of birth is 04.03.1998 and he inquired about the date of birth from Registrar, Municipal Corporation. Letter dated 14.08.2012 was received and same is Ex.PW11/D. After completion of investigation, the charge sheet was prepared and filed before the court.
16. Statements of accused was recorded u/s 313 Cr. P.C, wherein entire incriminating evidence has been read over and explained to accused to which he pleaded innocence and claimed false implication in the present case.
According to accused, he has been falsely implicated in the present case. He had stated that he was called by the prosutrix and she compelled him to take her away and thereafter case had been filed against him.
17. I have heard Sh. Vinod Kumar Sharma Ld. Addl. P.P. for State, Sh. S. P. S Chauhan, Ld. counsel for accused.
18. It is argued by Ld counsel for accused that there is no allegation of enticing or taking away from lawful guardianship. Prosecutrix PW3 had categorically stated that she had gone with the accused out of her own freewill and there was no force or inducement exerted by S.C. No. 92/12 12 of 19 pages State Vs .Dharmender Singh 13 the accused.
19. On the other hand it is submitted by Ld Addl.P.P for the State that at the time of commission of offence, prosecutrix was minor girl ie age of 15 years and therefore her consent does not matter. The evidence, chargesheet and investigation carried out by the police official specifically proved on record that accused Dharmender had taken away the girl ie prosecutrix from the guardianship without the consent of the guardian and hence he is guilty of the offence u/s 363 IPC and since taking away was with the intention to force the girl for marriage, therefore offence u/s 366 IPC is also made out.
20. In order to prove the case, prosecution has examined 11 witnesses. Out of that PW1 is duty officer, PW2 is MHC(M), PW5 Ct Suesh Kumar and PW6 Ct Guddi Baliyan are constables who had taken the sample to FSL. PW7, PW8 and PW9 are formal witnesses who have not been crossexamined by Ld counsel for accused. PW10 is Nodal Officer from Idea Cellular who had proved on record call records of mobile phone no. 8505928953, which is in the name of Deepak Gupta ie father of prosecutrix and mobile no. 9012827110 is in the name of accused Dharmender. PW11 SI Dharmender Kumar is IO S.C. No. 92/12 13 of 19 pages State Vs .Dharmender Singh 14 of the case.
21. Only two public witnesses have been examined by prosecution. PW3 is prosecutrix and PW4 Shri Deepak Gupta is father of prosecutrix. In examination in chief PW3 had specifically stated that on 5.07.2012. There appears to be a typographical error in respect of date, as the date of incident is intervening night of 4/06/2012 and 05/06/2012. Even this fact is not disputed by the accused or his counsel. She received a call from accused in the night when accused disclosed to her that he loves her and wanted to get married. When she refused, accused told her that he would come up stairs in her house. At this point of time prosecutrix had specifically stated that "she got scared" and came down at about 11 or 11.30 p.m. She deposed that "on the suggestion" of the accused they boarded auto. In the cross examination it has not been put to the prosecutrix that accused had not suggested to her going out in auto or the facts deposed by her were incorrect. Even no suggestion has been given to the prosecutrix that whatever she had deposed, is false and incorrect.
22. In this case relevant testimony for the purpose of present case is testimony of PW3 along with the fact that at the relevant date PW3 was minor, as she was 14 years S.C. No. 92/12 14 of 19 pages State Vs .Dharmender Singh 15 and 4 months old at the time of alleged offence. All other witnesses are formal witnesses and even the testimony of PW4 except proving that daughter was minor and prosecutrix was found missing from the house , does not state any material thing. Apart from these two facts he had deposed about the factum of his joining investigation with police party.
23. In the entire evidence of prosecutrix, no suggestion had been given, from the side of the accused, about the identity of the accused or about the intention of the accused to any witness. Most of the witnesses were not even cross examined. Only at the stage of final arguments, it is stated by Ld counsel for accused that girl had gone with accused with her own consent and thus no charge u/s 363 IPC is made out. At this stage, it is relevant to consider that consent given by minor girl is no consent as per provision of law.
24. Section 361 IPC defines kidnapping. For better understanding, Section 361 IPC is reproduced as under:
Kidnapping from lawful guardianship whoever takes or entices any minor under 16 years of age if a male, or under 18 years of age if a female or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind , without the consent of S.C. No. 92/12 15 of 19 pages State Vs .Dharmender Singh 16 such guardian is said to kidnap such minor or person from lawful guardianship.
25. From bare reading of Section 361 IPC it is clear that material point to be considered in a case of kidnapping is ; firstly action must have enticed the minor ; secondly taken away minor from the lawful guardianship without the consent of such guardian and thirdly person so taken away, should be minor ie below 16 years in case of male and below 18 years in case of female.
26. In the present case it is specifically proved by prosecution that on relevant date accused had called the prosecutrix and had threatened her that he will come upstairs to her house in the mid night, at which point prosecutrix got scared and came down to meet him. It is further proved by prosecution that on the suggestion of the accused they boarded the auto and thereafter boarded the bus and went to Chandigarh. From the entire examination of prosecutrix it cannot be said that prosecutrix had gone with the accused out of her own freewill but it is clear that she got scared from the behavior of the accused and when accused suggested her to go away from the house, she boarded the auto on his suggestion.
27. Second ingredient that "taken away" without the S.C. No. 92/12 16 of 19 pages State Vs .Dharmender Singh 17 consent of such guardian from lawful guardianship is also proved by the prosecution as it is proved by PW4 Shri Deepak Gupta that minor was found missing from her house and father was not aware of the whereabouts of the minor. It is not the case of the accused that he had taken the girl with the consent of the father. Thus prosecution has proved this element against the accused.
28. Third ingredient of section 361 IPC for proving kidnapping is age of the prosecutrix. Admittedly in this case at the time of incident, prosecutrix was 14 years and 3 months old . Her date of birth is 04.03.1998 and incident is of 5.6.2012, therefore, she was minor and not completed the age of 18 years, therefore, third requirement of kidnapping is also proved by the prosecution.
29. In view of my above discussion, I am of the opinion that prosecution has proved the case beyond reasonable doubt that accused had committed an offence u/s 363 IPC.
30. In the present case accused had also been charged for an offence u/s 366 IPC. For better understanding section 366 IPC is reproduced as under:
Kidnapping, abducting or inducing woman to compel her marriage etc Whoever kidnaps or S.C. No. 92/12 17 of 19 pages State Vs .Dharmender Singh 18 abducts any woman with intent that she may be compelled or knowing it to be likely that she will be compelled to marry any person against her will or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine (and whoever authority or any other method or compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that the will be forced or seduced to illicit intercourse with another person shall be punished as aforesaid).
31. From the testimony of PW3 prosecutrix and other witnesses examined by the prosecution, there is no evidence led by the prosecution which could prove that prosecutrix was kidnapped by the accused for the purpose to marry her or there was any false promises or inducement given to the prosecutrix for marriage, or that she was compelled by accused or any one else to marry accused. Therefore, I am of opinion that prosecution has failed to make out case against the accused u/s 366 IPC.
32. In view of the aforesaid observations, I am of the S.C. No. 92/12 18 of 19 pages State Vs .Dharmender Singh 19 opinion that prosecution has been able to bring home the guilt of accused u/s 363 IPC and therefore I convict accused Dharmender Singh for offence punishable u/s 363 IPC. Prosecution has failed to prove the case against the accused u/s 366 IPC, therefore accused is acquitted for an offence u/s 366 IPC.
ANNOUNCED IN THE OPEN COURT ON 25th September, 2013.
(SHAIL JAIN)
ASJ/SPECIAL JUDGE NDPS02
CENTRAL, DELHI
S.C. No. 92/12 19 of 19 pages
State Vs .Dharmender Singh