Delhi District Court
Fir No. 186/2009, Ps : Ndrs State vs . Vishal @ Ganja on 27 August, 2019
FIR No. 186/2009, PS : NDRS State Vs. Vishal @ Ganja
IN THE COURT OF MM08 (CENTRAL DISTRICT)
TIS HAZARI COURTS COMPLEX, DELHI.
Presiding Officer: Dinesh Kumar, DJS.
IN THE MATTER OF :
State Vs. Vishal @ Ganja
FIR No. 186/2009
PS : NDRS
U/s 363 IPC
CNR No. DLCT020009192011
Date of Institution : 16.05.2011
Date of reserving of order : 27.08.2019
Date of Judgment : Oral
JUDGMENT
1. Serial No. of the case : 295354/2016
2. Name of the Complainant : Smt. Rani
3. Date of incident : 25.05.2009
4. Name of accused :
Vishal @ Ganja S/o Sh. Om Praksh,
R/o H. No. S393, Sector12, R.K.
Puram, Kanak Durga Colony, New
Delhi
5. Offence for which chargesheet
was filed : 363 IPC.
6. Offence for which charge
has been framed : 363 IPC
7. Plea of accused : Not guilty
8. Final Order : Acquitted
9. Date of Judgment : 27.08.2019
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FIR No. 186/2009, PS : NDRS State Vs. Vishal @ Ganja
BRIEF REASONS FOR ORDER:
1. Mr. Vishal @ Ganja, the accused herein, has been chargesheeted for the offence punishable under Section 363, the Indian Penal Code (45 of 1860) (hereinafter referred to as "IPC").
2. The case of the prosecution is that on 25.05.2009, complainant Smt.Rani had come at New Delhi Railway Station alongwith her minor daughter named Rohini, aged 16 years, to catch Tamil Nadu Express Train. She was present at Platform No.6 alongwith her daughter. At about 8 p.m., she noticed that Rohini was not present there. However, she had seen the accused present on the platform. She made efforts to trace her daughter. Thereafter, she left for her home. On next day, she approached the police and made complaint. She had suspected that the accused, a neighbor of the complainant, had kidnapped her daughter. On her statement, present FIR was registered. After completion of investigation final report was prepared by the IO and the accused was chargesheeted for the offence punishable under Section 363 IPC.
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3. After perusing the record, cognizance was taken by the Court. The accused appeared in the Court. Compliance of Section 207, Criminal Procedure Code, 1973 (hereinafter referred to as 'Cr.P.C.) was done. After hearing the parties, charge for the offence punishable under Section 363 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
4. The prosecution has examined as many as 09 witnesses to prove its case against the accused.
5. PW1 Smt. Somawati is a witness from Jose Marti Sarvodaya School, Sector12, R.K.Puram, Delhi. She has produced the summoned record i.e., the attested copy of the School Leaving Certificate of Ms. Rohini issued by the school which is Ex. PW1/A (OSR), the attested copy of the admission and withdrawal register of the school is Ex. PW1/B (OSR) and the attested copy School Leaving Certificate of Ms. Rohini submitted by her with school at the time of admission is Ex. PW1/C (OSR).
6. PW2 Sh. Subhash Chander is the Superintendent (Birth and Death), NDMC Mandir Marg New Delhi. He has produced the the photocopy of the 3 of 20 MM08 (C)/THC/Delhi/27.08.2019 FIR No. 186/2009, PS : NDRS State Vs. Vishal @ Ganja record reflecting the date of birth of Ms. Rohini as 28.02.1993. The same is Ex. PW2/A (OSR).
7. PW3 Mutu Swami Setu is the husband of the complainant. He has deposed that on 25.05.2009, at around 07:00 p.m., he received a call from his wife Smt. Rani. On that day, his wife, alongwith her daughter Rohini, was going to Chennai through Tamil Nadu Express. She told him that their daughter was missing. He reached at the platform. He alongwith his wife tried to find out their daughter but could not find her. His wife told him that she had seen accused Ganja. She had stated that he might have kidnapped their daughter. He alongwith his wife reached at police station. His wife made complaint to the police officials. They also told that they had doubt on accused Ganja. He knew accused Ganja even prior to the date of incident as he was residing in the same colony. On next day, the police officials came in the colony and they made injury about the accused from him. Police went to the house of accused but he was not found there. Police told him that they should make efforts to trace the accused and if he was found they should inform them. He had seen that parents of the accused were 4 of 20 MM08 (C)/THC/Delhi/27.08.2019 FIR No. 186/2009, PS : NDRS State Vs. Vishal @ Ganja loading their house hold articles on a tempo and it was appearing as if they were vacating their residential premises. He thus gave call to the police in this regard. Police came there and made inquires from the family of accused but could not find him. Later on his wife came to know from the tempo driver that the accused could be found at a colony. His wife went in a house in which accused along with family was residing and there she could find their daughter.
8. The witness was crossexamined by Ld.APP. In his crossexamination, he denied the suggestions. He denied the suggestion that the accused was arrested in his presence. He would state that the accused was shown to him in the PS and his signatures were obtained there. He denied making any statement to the police at any point of time.
9. PW4 Smt. Rani is the complainant in the present case. She has deposed that on 25.05.2009 at about 8.00 p.m, she alongwith her daughter Rohini reached at platform no. 6 NDRS to board the Tamilnadu Express for going to their native place. After few minutes, she did not find her daughter at platform. The accused Vishal @ Ganja 5 of 20 MM08 (C)/THC/Delhi/27.08.2019 FIR No. 186/2009, PS : NDRS State Vs. Vishal @ Ganja was present at the platform and she had suspicion that he might have taken her daughter by making inducement to her. Her daughter was aged about 16 years at that time. Accused Vishal @ Ganja was known to her as he was resident of the same locality. Immediately, she went to PS to lodge the complaint. Police official told her to come next day as it was night at that time. She cancelled her tickets and returned to home. On next day, again she went to PS NDRS and her statement was recorded by the police and same is Ex. PW1/A. Later on, she came to know that her daughter was kept in Sultanpuri Area. After 1314 days from the date of incident she went over there in Sultanpuri area and rescued her daughter with the help of local shopkeepers.
10. PW5 ASI Laxman Prasad is the police official who had joined the investigation with the IO. He has deposed that on 13.06.2009, he alongwith IO SI Sohan Lal and HC Satish reached at R.K. Puram, where they met with driver Raju who told that accused Vishal @ Ganja was present at C Block Sultanpuri. Thereafter, they reached there alongwith husband of complainant namely Muththu Swami where he identified the accused.
6 of 20 MM08 (C)/THC/Delhi/27.08.2019 FIR No. 186/2009, PS : NDRS State Vs. Vishal @ Ganja Thereafter, accused was apprehended and IO had prepared his formal arrest vide memo Ex.PW5/A. His personal search was conducted vide memo Ex. PW5/B.
11. PW6 Ms. Rohini is the victim in the present case. She has stated that she did not want to say anything in the present case.
12. PW7 SI Sohan Lal is the IO. He has deposed that on 26.05.2009, complainant Smt. Rani came at the PS and made an oral complaint. He recorded her statement at and prepared the rukka. He handed over the rukka to the DO for registration of FIR. He made efforts to trace the accused and the victim. On 13.06.2009, he alongwith HC Satish and Ct. Laxman reached at Kanak Durga Colony. He alongwith his team took the father of the victim Muthu Swami to Mohan Singh Market, R.K. Puram for the investigation with the tempo driver. At Mohan Singh Market Tempo Driver was apprehended. He disclosed that he had dropped the accused and the victim at Sultan Puri, Block C. Thereafter, he alongwith the team and the father of the victim reached at Sultan Puri, Block C, where Muthu Swami had identified the accused Vishal @ Ganja. The accused was apprehended and arrested vide memo Ex.
7 of 20 MM08 (C)/THC/Delhi/27.08.2019 FIR No. 186/2009, PS : NDRS State Vs. Vishal @ Ganja PW5/A. His personal search was conducted vide memo Ex. PW5/B. He had obtained the certificate of birth of the victim.
13. PW8 Retd. SI Ashok Kumar was the IO. He had prepared the Challan and filed in the Court.
14. PW9 ASI Satish Kumar is the police official who had participated in the investigation. He has deposed that the accused was arrested in his presence.
15. All the witnesses were crossexamined. The accused admitted, under Section 294 Cr. P.C., the FIR No. 186/2009, PS : NDRS, copy of which is Ex. A1.
16. The prosecution evidence was closed. The accused was examined under Section 313 Cr.P.C r/w Section 281 Cr.P.C. Substance of incriminating evidence was put to him. He denied all the incriminating evidence. He would state that he was innocent and falsely implicated.
17. The accused did not lead any defence evidence. Therefore, matter was fixed for final arguments.
18. Ld. APP for the State would argue that the prosecution has proved its case beyond reasonable doubts. It has been proved that the accused had kidnapped the 8 of 20 MM08 (C)/THC/Delhi/27.08.2019 FIR No. 186/2009, PS : NDRS State Vs. Vishal @ Ganja victim from the lawful of her mother. Hence, the prosecution has proved all the ingredients of the offences punishable under Section 363 IPC and the guilt of the accused has been proved beyond reasonable doubts. Hence, it is prayed, the accused may be convicted.
19. Ld. Defence counsel, on the other hand, would argue that the prosecution has failed to prove its case against the accused beyond reasonable doubts. There are various contradictions in the testimonies of the witnesses of the prosecution. None of the prosecution witness has been able to prove that the accused had kidnapped the victim. None of the witness has stated that he or she had seen the victim with the accused at any point of time. The victim was also not recovered by any police official. A false complaint was made by the complainant to implicate the accused due to previous enmity. There is no witness examined by the prosecution to prove that the victim was kidnapped as alleged. PW3 and PW4 are interested witness. They have deposed falsely to implicate the accused. The victim herself had not made any allegation against the accused. No statement of the victim was ever recorded by the police during the investigation which 9 of 20 MM08 (C)/THC/Delhi/27.08.2019 FIR No. 186/2009, PS : NDRS State Vs. Vishal @ Ganja creates reasonable doubts on the case of the prosecution. Hence, it is prayed, the benefit of doubts may be given to the accused and he may be acquitted.
20. I have heard the rival submissions and carefully perused the material available on record.
21. In a criminal case the burden is on the prosecution to prove its case beyond reasonable doubts before the accused is asked to put her defence.
22. In the present case, the accused has been charged for the offence punishable under Section 363, IPC. Section 363, IPC provides punishment for kidnapping any person, interalia, from lawful guardianship. Section 359, IPC provides that kidnapping is of two kind, i.e., kidnapping from India and kidnapping from lawful guardianship. Section 360 IPC defines kidnapping from India while Section 361, IPC defines kidnapping from lawful guardianship. The main ingredients of Section 361, IPC are:
1. There must be taking or enticing of a minor or of a person of unsound mind;
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2. the minor must be under 16 years of age, if a male or under 18 year of age if female;
3. the taking or enticing must be out of the keeping of the lawful guardian of the minor or person of unsound mind; and
4. the taking or entice must be without the consent of such guardian.
23. The first ingredient of kidnapping is taking or enticing of minor. 'Taking' implies neither force nor misrepresentation. If a girl of less then 18 years, or a boy of less than 16 years of age, is taken away from the keeping of her/his lawful guardian, the offence of kidnapping is established. The prosecution must show that the accused took some active part in the child leaving his lawful guardians custody.
24. In the present case, it has been proved by the prosecution that victim Rohini was a minor on the date of alleged incident. PW2 has produced the record of birth of Ms. Rohini which is Ex. PW2/A. In the said document the date of birth of Ms.Rohini shown as 28.02.1993. similarly PW2 has produced record from school related to Ms. 11 of 20 MM08 (C)/THC/Delhi/27.08.2019 FIR No. 186/2009, PS : NDRS State Vs. Vishal @ Ganja Rohini. The said record is Ex. PW1/A (OSR), Ex. PW1/B (OSR) and Ex. PW1/C (OSR). In the said record also the date of birth of the child is mentioned as 28.02.1994.
25. Ld. Counsel for the accused would argue that the record produced by the prosecution does not establish that this is related to the victim. It has been argued that in the document Ex. PW2/A the name of the father of the child is mentioned as M Sethi. Further in the report by PW1 i.e., Ex. PW1/A, Ex. PW1/B and Ex. PW1/C, the name of the father of the child is mentioned as M. Setu. However, in his evidence in the Court, the father of the victim has stated his name as Mutu Swami Setu.
26. I have considered the submissions. However, I do not find any merit in the same. There is no reason to doubt that the record produced by PW1 is not related to the victim. In the school leaving certificate the name of the victim, her father's name and her mother's name are duly mentioned which match with the names of the father and mother of the victim. Hence, I am of the opinion that the prosecution has proved beyond reasonable doubts that date of birth of victim Rohini is 28.02.1993. Thus it is proved beyond reasonable doubts that on the date of 12 of 20 MM08 (C)/THC/Delhi/27.08.2019 FIR No. 186/2009, PS : NDRS State Vs. Vishal @ Ganja alleged incident i.e., on 25.05.2009, victim Rohini was 16 years and about 3 months old. Thus, she was minor on the date of alleged incident.
27. It has been alleged by the prosecution that the accused had taken victim Rohini, aged 16 years 3 months, out of the keeping of the lawful guardian, Ms. Rani, the mother of the victim.
28. The victim has been examined in Court as PW
6. However, she has not made any statement against the accused. She has stated that she did not want to say anything in the present case. Perusal of the record would also show that during the entire investigation no statement of the victim was recorded by the IO under Section 161 Cr.P.C. None of the IO in his evidence has provided the explanation for not recording the statement of the witness under Section 161 Cr.P.C. Similarly no explanation is provided by any of the IO in evidence as to why no statement of the witness was got recorded before a Magistrate under Section 164 Cr.P.C. Even in the challan no plausible reason is mentioned for not recording the statement of the victim. It has been only mentioned that the victim had gone to Chennai alongwith her mother and 13 of 20 MM08 (C)/THC/Delhi/27.08.2019 FIR No. 186/2009, PS : NDRS State Vs. Vishal @ Ganja she was not produced despite giving a notice under Section 160 Cr.P.C., to the father of the victim. The explanation mentioned in the challan does not appear to be reasonable. The IO did not make sufficient efforts to record the statement of the victim under Section 161 Cr.P.C. He did not take any step to get her statement recorded under Section 164 Cr.P.C. The statement of the victim was necessary to find out whether she had gone with the accused as alleged or not.
29. Further, mother of the victim, complainant Smt. Rani, in her evidence as PW4, has stated that her daughter, victim Rani, went missing from the New Delhi Railway Station. She has however nowhere stated that she had seen her daughter with the accused at any point of time on that day. There is no witness examined by the prosecution to prove that the victim was seen with the accused on the date of the alleged incident.
30. PW4 Smt. Rani in her evidence has stated that on the relevant day, she had come with the victim at New Delhi Railway Station to board a Train. However, after sometime she noticed that the victim was not present there. She had gone to the PS to make complaint.
14 of 20 MM08 (C)/THC/Delhi/27.08.2019 FIR No. 186/2009, PS : NDRS State Vs. Vishal @ Ganja However, the police official had asked him to come on next day. Thereafter she got the tickets cancelled and returned to her home. On next day, she again visited the PS and got the FIR registered. In her entire statement PW 1 has nowhere stated that she had called her husband after she noticed that her daughter was missing. She has also not stated that her husband had come at the Railway Station. However, PW3, Mutu Swami Setu, husband of the complainant has stated in his examination that his wife had called him and informed that their daughter was missing. He had reached at the Railway Station. Thereafter, he alongwith his wife went to the PS and made a complaint to the Police. Thus, there is a material contradiction in the testimonies of two material witnesses examined by the prosecution. PW3, on one hand, has stated that he had reached at the Railway Station and tried to trace his daughter alongwith his wife, PW4 Smt. Rani. However, PW4 has not deposed regarding arrival of her husband at the Railway Station.
31. Further, no cancelled tickets of the complainant and the victim have been brought on the record to prove that the complainant was present at New 15 of 20 MM08 (C)/THC/Delhi/27.08.2019 FIR No. 186/2009, PS : NDRS State Vs. Vishal @ Ganja Delhi Railway Station on 25.05.2009. The present complaint is shown to be made on 26.05.2009. There is no evidence on record to prove that on 25.05.2009 the complainant and the victim were present at New Delhi Railway Station.
32. It is also noteworthy that the defence has shown, on the preponderance of probability, that there was previous enmity between the family of the accused and the family of the complainant. PW3 Mutu Swami Setu has admitted in his crossexamination that prior to registration of the present FIR, both the parties had made the complaint against each other. He has also admitted that earlier also he had got registered an FIR against the accused regarding kidnapping of his daughter. She has also admitted that there was one case registered against him on a complaint of the brother of the accused. PW4 Smt. Rani has also admitted in her crossexamination that there were previous criminal cases between the parties. Thus, it has been proved by the defence that there is previous enmity between the parties.
33. Perusal of the record would also show that the victim was not recovered by any police official during 16 of 20 MM08 (C)/THC/Delhi/27.08.2019 FIR No. 186/2009, PS : NDRS State Vs. Vishal @ Ganja investigation. As per the prosecution story the victim was traced and recovered by the complainant herself. PW3 has also stated that the child was not recovered in his presence. He has stated that his wife had recovered the victim. However, the testimony of the complainant is not able to prove beyond reasonable doubts that the accused had kidnapped the minor. As mentioned hereinabove, the complainant had not seen the victim with the accused on 25.05.2009. She had only shown her suspicion that the accused might have taken her daughter. In her testimony as PW4, she has stated as under :
"later on, I came to know that my daughter was kept in Sultanpuri area. After 1314 days from the date of incident, I went over there in Sultanpuri area and rescued my daughter with the help of local shop keepers."
34. The prosecution did not examine any of alleged shopkeepers to show that the victim was so rescued by the complainant. Due to previous enmity between the parties, the complainant, being interested witness, can not be relied upon without any corroboration from some independent witness. However, no such independent witness has been examined by the 17 of 20 MM08 (C)/THC/Delhi/27.08.2019 FIR No. 186/2009, PS : NDRS State Vs. Vishal @ Ganja prosecution to corroborate the testimony of the complainant. I am conscious of the legal position that no particular number of witness is required to prove a particular fact. Section 134 of the Indian Evidence Act, 1872 specifically lays down the said position. Hon'ble Supreme Court of India in Lallu Manjhi Vs. State of Jharkhand AIR 2003 SC 854 has held that the Law of Evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the Court may classify the oral testimony of a single witness, into three categories namely (i) wholly unreliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon testimony of a single witness.
35. In the present case also, for the reasons discussed hereinabove, I am of the opinion that 18 of 20 MM08 (C)/THC/Delhi/27.08.2019 FIR No. 186/2009, PS : NDRS State Vs. Vishal @ Ganja testimonies of the complainant and her husband are not wholly reliable. Some corroboration was required to prove the case of the prosecution. However, no such witness was examined by the prosecution. The alleged shopkeepers who had helped the complainant in alleged rescue of the victim could be material witnesses to prove the said fact. However, no such person has been examined by the prosecution. It creates reasonable doubts on the case of the prosecution. The possibility of false implication can not be ruled out completely considering the previous enmity between the parties.
36. Be that as it may, PW4 in her testimony has not stated that she had rescued the victim from the house of the accused. She has also not stated that the accused was present in the said house when the victim was rescued. No evidence has been brought on record to show that the alleged house belonged to the accused or his relative so as to prove that the accused had kept the victim in the said house. There is nothing in the testimony of PW3 and PW4 to prove that the accused was associated with the alleged house where the victim was allegedly recovered from.
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37. In the light of the discussion hereinabove, I hold that the prosecution has failed to prove beyond reasonable doubts that the accused had taken or enticed victim Rohini out of the keeping of the lawful guardian of the victim without the consent of such guardian. The prosecution has also failed to prove beyond reasonable doubts that the victim was recovered from the possession of the accused or at his instance. In these circumstances, I hold that the prosecution has failed to prove its case against the accused beyond reasonable doubts. The accused is given benefit of reasonable doubts. He is, therefore, acquitted.
38. The accused has already furnished bond under Section 437A Cr.P.C., with one surety alongwith photograph and copy of address proofs.
Digitally
signed by
DINESH
DINESH KUMAR
KUMAR Date:
2019.08.27
17:48:55
+0530
Pronounced in the open Court on (Dinesh Kumar)
this 27th day of August 2019 MM08 (Central)
Tis Hazari Courts, Delhi.
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