Delhi District Court
State vs Guddu on 31 March, 2023
DLSW020345482018
IN THE COURT OF METROPOLITAN MAGISTRATE-01,
SOUTH-WEST, DWARKA COURTS, NEW DELHI
- PRESIDED BY:
PARAS DALAL, D.J.S.
FIR No. 43/2018
PS Palam Village
U/S : 363 Indian Penal Code, 1860
State V/s Guddu
Cr.C No. 27588/2018
CNR No. DLSW020345482018
Date of Institution 12.09.2018
Complainant Sahnaj
W/o Makhbool Hassan
R/o A135, JJ Colony,
Sector 7, Dwarka, New Delhi
Name, parentage and address of Accused Guddu
S/o Ram Dheen Prashad
R/o WZ 65B, Adarsh Gai Palam
Village, New Delhi
Offence complained off 363 IPC
Plea of Accused Not Guilty
Final Order Acquitted
Date of Judgment 31.03.2023
----------------------------------------------------------------------------------------------
Argued by: Sh. Manish Sidhawat, Ld. APP for the State
Sh. Manish Sherawat, Ld. LAC for the Accused
----------------------------------------------------------------------------------------------
FIR No. 43 of 2018; P.S. Palam Village Pages 1 of 12 State v. Guddu
JUDGMENT
1. The SHO, Police Station Palam Village has presented this charge-sheet against above named accused persons for initiation of trial under Sections 363 Indian Penal Code, 1860 (for short "IPC").
2. Briefly stated, the facts of the case as per prosecution are that on 03.02.2018 one DD No. 20A was registered that one person is trying to kidnap one baby wherein ASI Ajit Singh alongwith Ct. Shankar reached the spot and complainant Sahnaj stated that her 2 year old Saina was playing in the park with other kids at 11 AM when one child came running and stated that her daughter Saina was being kidnapped by one uncle from the park, on which she ran towards the park and she saw one man was taking her daughter from the park towards the road who she apprehended, and when she confronted he stated that he was taking the child to have biscuit and she further stated that the man was drunk and not able to stand properly. Her complaint was written and converted into tehrir which was sent through Ct. Krishan for registration of FIR. Enquiry was made from the spot and accused stated that he had three children who live at his native place, and when he comes with MCD vehicle for picking garbage, he seldom plays with kids in the park and even Saina and other kids used to play with him when he came to the park. About the date of incident, he disclosed that he was drunk, upon seeing him in the park, Saina came running towards him and he was reminded of his children at home, so he was taking her to have biscuits. During further investigation, both child Saina and accused Guddu were medically examined and upon arrest, accused Guddu was sent to judicial custody. Upon completion of investigation, challan was prepared u/s. 363 IPC and filed in Court for trial.
FIR No. 43 of 2018; P.S. Palam Village Pages 2 of 12 State v. Guddu
3. The copy of chargesheet and documents were supplied to the accused in compliance of Section 207 Cr.P.C. Prima facie case was made out, charge for offence u/s. 363 IPC was framed against the accused Guddu on 07.02.2019 wherein he pleaded not guilty and claimed trial.
Prosecution Evidence
4. In order to prove its case, prosecution has examined four witnesses (hereinafter referred to as 'PW'). PW-1 Complainant Sehnaj deposed that at the time of incident her daughter was two years of age and she was present at her house when her child Saina was playing in nearby park. At around 11 am, one girl (whose name she did not remember) came to her house and told that one uncle had taken away her daughter from the park. PW1 stated to have ran towards the park, where her daughter was not found, she went towards the road and saw accused (who she identified in the Court) taking away her daughter with him and she apprehended him. She stated that accused was drunk and by then she did not know his name and she brought the accused as well as her daughter in the gali where accused was beaten by public persons, police was called and accused was handed over to the police. PW1 identified her statement as Ex.PW1/A, site plan as Ex.PW1/B and she stated that her daughter was taken to the hospital by the police and investigation was made from her. In her cross examination, PW1 answered that at the time of incident she was residing at rental accommodation owned by one Makrijan, but she did not remember the address. She stated that her house was about 1-2 KMs from the park where her daughter was playing and at the time of incident she was residing with her husband and two children named Saina and Sahil aged 5 and 7, respectively, however she stated that at the time of incident, her husband was not at home and was at his workplace. PW1 was unable to tell the name of the child who came to inform her about her daughter being FIR No. 43 of 2018; P.S. Palam Village Pages 3 of 12 State v. Guddu kidnapped, she said the child was about 8-9 years old and could not tell her residence. PW1 also stated that said child had never came to her house prior to the incident and the child did not even know that Saina was her daughter. PW1 was then questioned by the Court if the child who came to inform her knew that Saina was her daughter, to which the witness denied. PW1 further stated that there was no elder in the park and only children were playing and in her presence no other police investigation was done. PW1 stated that her statement was recorded only once by the police and she never accompanied the spot with the police officer. PW1 stated that she had caught the accused herself when he was running away with the child and admitted that at the time of being caught accused was drunk and unable to stand properly.
5. PW2 Ct. Shankar deposed that on 03.02.2018 on receipt of DD No. 20A about lifting of one child by one person in Sector 7 JJ Colony, Dwarka he accompanied ASI Ajeet Singh. At the spot they met complainant Sahnaj who had apprehended Guddu and he was drunk who attempted to kidnap her daughter Saina aged about 2-3 years. PW2 stated that some public persons were also present at the spot and ASI Ajeet Singh recorded complainant's statement which he converted into tehrir, which PW2 took to police station for registration of FIR. PW2 deposed that once he reached the spot with copy of FIR, IO arrested the accused vide memo Ex.PW2/A, he was taken for medical examination and IO recorded his statement. PW2 in his cross examination stated that he did not know who made call at 100 number on basis of which DD No. 20A was registered. PW2 could not tell if they made any departure entry while leaving the police station and stated that they reached the spot at 11:30 AM, where about 10-15 persons had gathered and he could tell all documents prepared by the IO at the spot and also stated that no public witness was examined at the spot by the IO.
FIR No. 43 of 2018; P.S. Palam Village Pages 4 of 12 State v. Guddu
6. PW3 ASI Ombir deposed that on 12.03.2020 at 11:17 AM DD No. 20A was registered on receipt of information that one child was taken away by one person in JJ Colony, A/135, Dwarka Sector 7. Said DD No. is Ex.PW3/A.
7. PW4 ASI Ajit Singh is the Investigating Officer and he deposed that on 03.02.2018 on receipt of DD No. 20A he reached the spot with Ct. Shankar and met the complainant Sahnaj with her child and two unknown persons had apprehended accused Guddu. PW4 stated that complainant narrated the incident which he recorded as Ex.PW1/A which he converted into tehrir, made endorsement Ex.PW4/1 and sent through Ct. Shankar for registration of FIR. PW4 deposed to have taken accused Guddu in his custody, prepared site plan Ex.PW1/B, interrogated accused who made disclosure statement Ex.PW4/2 and arrested accused vide Ex.PW2/A, he was personal searched vide memo Ex.PW4/3. Medical examination report of accused is Ex.PW4/4 and of child Saina is Ex.PW4/5. PW4 also stated to have collected the birth certificate of victim Saina and identity card of the mother and victim which is collectively Mark PW4/6. PW4 in his cross examination answered that accused was apprehended by one person named Aman and other person was not known and did not note his name. PW4 stated that he did try to join public persons in the investigation but they refused due to personal reasons. PW4 admitted he gave no written notice to any public person and he also could not tell the name of the child who informed complainant that one person was taking away her daughter Saina. PW4 further stated that park is surrounded by number of houses and stated that no public persons were present in the park except children. PW4 denied that complainant and accused had verbal altercation, but admitted that no witness deposed the manner in which accused induced/ kidnapped FIR No. 43 of 2018; P.S. Palam Village Pages 5 of 12 State v. Guddu the victim. PW4 also admitted that he never investigated the manner in which accused induced/ kidnapped the child, however voluntarily stated that same could not be done as nobody was found present there.
Statement of Accused
8. Prosecution evidence was closed. The statement of accused Guddu under Section 313 of the Code of Criminal Procedure, 1973 was recorded on 14.02.2023 and he was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He defended that he had verbal altercation with complainant as he was drunk and therefore she made false allegations.
Arguments
9. Learned Assistant Public Prosecutor for the State argued that the prosecution has proved its case beyond all reasonable shadow of doubts by examining all the material witnesses who have supported the prosecution version in material aspects. Accordingly, conviction of accused was prayed.
10. On the other hand, defense argued that there is no proof that accused induced the victim. It is also argued that complainant's version is unbelievable as she stated that park was about 1-2 KMs from her house and there was no adult in the park and only children were playing unattended. Further, it is unbelievable that one child aged 8 years would come 1-2 KMs away from the park to the complainant to inform her about Saina being kidnapped when that child did not even know Saina or that complainant Sahnaj was her mother and without ever having come to her house, she would know Saina or Sehnaj. Nevertheless, it is argued that said child aged 8 years was never examined by the police and thus there is missing chain in the link of the prosecution story.
FIR No. 43 of 2018; P.S. Palam Village Pages 6 of 12 State v. Guddu Findings
11. The prosecution in Order to prove the case of kidnapping has to prove ingredients as envisaged in Section 359 IPC and Section 361 IPC. As per Section 359 IPC kidnapping can be 'from India' or 'from lawful guardian'. Relevant extracts of Section 361 IPC further states that 'kidnapping from lawful guardian' is constituted if anyone takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, out of the keeping of the lawful guardian of such minor, without the consent of such guardian, is said to kidnap such minor from lawful guardian.
12. In the present case, prosecution has alleged kidnapping by accused Guddu from minor Saina stated to be two years of age on date of incident i.e. 03.02.2018, from the lawful guardianship of her mother Sehnaj. The prosecution thus to prove the charge of Section 161 against Guddu was duty bound to prove - (1) victim Saina was aged two years, thus a minor; (2) she was in lawful guardianship of complainant Sehnaj; and (3) accused Guddu took Saina away or enticed her out of lawful guardianship of complainant Sehnaj.
13. Now from the case at hand and evidence adduced. This Court finds that the first ingredient has not been proved by the prosecution. PW4 IO seeks this Court to rely on documents collectively Mark PW4/6 i.e. purported birth certificate of victim Saina, identity card of complainant Sehnaj and victim Saina. IO however made no effort to get the said documents verified from the concerned department. No such verification report is on record, not even the originals of the said documents were seized or produced before this Court for perusal. In case birth certificate of Saina was obtained, FIR No. 43 of 2018; P.S. Palam Village Pages 7 of 12 State v. Guddu the same ought to have been verified from the issuing authority. Further, PW1 in her cross examination stated that she used to reside with her husband and two children aged 5 and 7 years named Saina and Sahil, however the entire prosecution case is that victim Saina is aged 2 years. There is genuine doubt as to the proof of first ingredient.
14. Even if for the sake of arguments the first ingredient is assumed to have been proved based on testimony of PW1, PW4 and documents Mark PW4/6. Prosecution was to prove that victim Saina was in lawful guardianship of complainant Sehnaj. PW1 Sehnaj deposed during questioning in the Court that victim Saina was in the park unattended by any adult person situated about 1-2 KMs from her house. PW1 further stated that she was told by one girl aged 8-9 years that one uncle was taking away her daughter Saina. Said informant was neither known to complainant Sehnaj, neither the said informant infant girl knew Saina was Sehnaj's daughter or where Saina and Sehnaj were residing. There is much skepticism about the manner in which complainant opened her case. It is highly unbelievable that complainant Sehnaj allowed her two years old daughter to play 1-2 KMs away from her house in a park not attended by any adult person. If the said statement is true, a two year old child 1-2 KMs away from her house, would definitely be beyond the guardianship of his/her parents. Lawful guardian is not defined and even as per Section 361 IPC, the limits of control and guardianship of parents would depend on the facts and circumstances of each case. A minor in school even if located 1-2 KMs from his house would remain to be in lawful guardianship of his/her parents, however a child playing in the park situated 1-2 KMs of his house unattended by any immediate adult or his parents would definitely be out of lawful guardianship of his/her parents. Present case is similar such instance, where victim Saina if was unattended 1-2 KMs away from her FIR No. 43 of 2018; P.S. Palam Village Pages 8 of 12 State v. Guddu house, she was beyond the lawful guardianship of her parents and thus prosecution was under greater burden to prove enticing and taking away. Either the complainant PW1 Sehnaj did not contemplate the actual distance between her house and the park and roughly stated 1-2 KMs or complainant gave suspicion to prosecution case and supported defence that present case is false since there could have been verbal altercation between accused and complainant. Although, PW1 deposed that she was illiterate and some benefit ought to be given to a witness appearing for the first time in Court. However, distance between places is one such thing which even an illiterate would contemplate and no sane person would make a mistake to confuse distance in KMs.
15. Again, even if this benefit is given to the complainant PW1 Sehnaj in mentioning correct distance between the park and her house. The third ingredient is essentially to be proved i.e. taking away or enticing. PW1 once being informed by the infant girl that one uncle was taking her daughter. She reached the park and did not find her and when she looked at the road, she saw accused Guddu taking away her daughter. PW1 even stated that accused was trying to run with her daughter and at another instance she stated that accused was drunk and was unable to even stand. PW1 made no mention of any demeanor of her daughter, whether she was crying or trying to resist accused Guddu who was a stranger. Further, PW1 stated that she brought both accused as well as her daughter to her locality, where public gathered and accused was even roughed up by some public persons. It is unnatural to believe that infant girl traveled 1-2 KMs from the park to her house, then complainant ran 1-2 KMs to the park from her house, found accused with her daughter road going away from the park, was able to apprehend accused, take her daughter and accused to her locality back 1-2 KMs. PW1 was categorical in her deposition that she FIR No. 43 of 2018; P.S. Palam Village Pages 9 of 12 State v. Guddu alone apprehended the accused with her daughter. It is unnatural to believe this entire version that by time infant girl informed complainant and complainant came to spot, accused had only managed to reach road leaving from the park, and once caught, accused made no run, but accompanied complainant to her locality when she was alone to apprehend accused and at the same time complainant handled her two years old daughter who was undergoing an ordeal of kidnapping. PW4 was cross examined as to specific instance about the taking away and enticing of the minor, to which he clearly admitted that there was no such investigation into the method employed by the accused to take away or entice the victim. PW4 admitted that there was no investigation from the infant girl who informed complainant about kidnapping and also no investigation was made from two public persons who had handed over the accused to the police at the spot. PW1 stated that she never went to the spot with the police, yet it is unimaginable how from mere statement of complainant, the IO was able to draw the site plan Ex.PW1/B. The site plan further does not mention the distance between house of the complainant and the park where children were playing. The site plan thus comes in no aid to prove taking away or enticing. The complainant admitted she never went to park with the police and since even site plan is not proved, there is no proof of taking away of the child by the accused.
16. The prosecution instead of proving its case beyond reasonable doubts, have sought many missing links to be presumed by this Court and even fill gaps in its case by giving benefit of doubts to the prosecution witnesses. The presumption of innocence already available to the accused would thus be severely curtailed, if this Court comes to give benefit to the prosecution on all three ingredients necessary to prove the offence of kidnapping from lawful guardian.
FIR No. 43 of 2018; P.S. Palam Village Pages 10 of 12 State v. Guddu
17. The defence has only one defence that he was drunk and had verbal dispute with the complainant and thus present case was lodged against him. Same finds some support from his medical examination and testimony of PW1, PW2 and PW4 which proves he was drunk at the time of incident. Accused is not complete outsider, he resides within the jurisdiction of P.S. Palam Village as per chargesheet filed at the time of incident. As per police report further it is stated that accused used to come to the said park since he used to work with MCD for picking garbage.
18. There is some substance in the arguments of the defence and there is presumption of innocence of the accused. Prosecution has to stand on its own legs, however the investigation in the present case has been done in haste wherein IO neither verified the age of victim, nor even filed the same on record until examination of IO before Court. There is no mention of Mark PW4/6 in the list of documents of the case diary. IO has not made effort to join any public witness at the spot when accused was apprehended or anyone near the park which is surrounded by residential houses. It is unnatural to believe that many children would be playing in the park without being attended by any adult member. IO further made no effort to find the infant girl who informed complainant about kidnapping of her daughter.
Conclusions
19. From the discussion above, none of the ingredients of kidnapping stands proved beyond reasonable doubt. Prosecution has utterly failed to prove its case. Accused already has presumption of innocence in his favour.
ORDER: ACQUITTED FIR No. 43 of 2018; P.S. Palam Village Pages 11 of 12 State v. Guddu
20. In view of the aforesaid discussion, this Court is of the considered opinion that the prosecution has not proved its case beyond all reasonable shadow of doubts. Accordingly, accused Guddu is hereby acquitted of the offence punishable under Section 363 Indian Penal Code, 1860.
Digitally signed by PARAS PARAS Date:
DALAL DALAL 15:15:04 2023.03.31 +0530 Pronounced in Open Court (Paras Dalal) on this day of March 31, 2023 MM -01, South West Dwarka Court, New Delhi FIR No. 43 of 2018; P.S. Palam Village Pages 12 of 12 State v. Guddu