Delhi District Court
State vs . Istkhar on 23 March, 2022
IN THE COURT OF MR RAHUL VERMA, METROPOLITAN
MAGISTRATE, SOUTH-EAST DISTRICT, SAKET COURT
COMPLEX
FIR No. 145/2017
PS - Sunlight Colony
U/s - 363 IPC
State Vs. Istkhar
JUDGMENT
Part A - The list at a glance A. Serial No. of the Case: 121/2018 B. Date of Commission: 24.07.2017 C. Date of Institution of Case: 08.01.2018 D. Name of the Complainant: Mohd. Razique E. Name of Accused: Istkhar S/o Shekh Majnul Haque R/o Ward No.11, VPO Siswaniya, PS Banjariya, District East Champarana, Motihari, Bihar.
F. Offence complained of: 363 IPC G. Plea of the accused : Pleaded not guilty H. Final Order: Acquitted I. Judgment reserved on: 08.03.2022 J. Date of judgment 23.03.2022 State Vs. Istkhar, FIR No.145/2017 Page.1 of 11
Part B - A brief statement of reasons for the decision (As mandated u/s 355(i) of the Code of Criminal Procedure, 1973)
1. Briefly stated, it is the case of the prosecution that on 24.07.2017 at about 08:00 PM at Ishahaq Masjid, ISBT, Sarai Kalen Khan within the jurisdiction of P.S. Sun Light Colony, the accused kidnapped a minor daughter of complainant Mohd. Razique from his lawful guardianship and without his consent. Present FIR was lodged on the basis of complaint given by the complainant Mohd. Razique. After completion of investigation in the present case, charge sheet was filed for the offence punishable under section 363 of Indian Penal Code (hereinafter referred to as "IPC").
2. Upon receiving the chargesheet, cognizance of the offence was taken and the accused was summoned by the court. Documents were supplied to the accused in compliance of Section 207 The Criminal Procedure Code, 1973 (hereinafter, referred to as 'Cr.P.C.')
3. On the basis of material on record, charge under Section 363 IPC was framed upon the accused, to which the accused pleaded not guilty and claimed trial.
4. Vide statement recorded under Section 294 of Cr.P.C. dated 08.03.2022 the accused admitted the genuineness of following documents:
(i) FIR (without contents) with certificate u/s.65B of Indian Evidence Act registered in the present case Ex.PA-1.
(ii) MLC bearing no. 5261/17 of victim Aisha Khatonn Ex.PA-2.
(iii) Statement of victim Aisha Khatoon recorded u/s.164 Cr.P.C on
State Vs. Istkhar, FIR No.145/2017 Page.2 of 11
Ex. PA-3.
5. In order to substantiate its case, prosecution examined the following witnesses:-
(i) PW-1 Mohd. Razique deposed that on 24.04.2017 when his daughter was not found in her room, they searched for her till midnight but were not able trace her. Accused Istkhar was working in nearby factory at that time and on the same day ie., 24.04.2017 he was also missing from his residence which was within the same premises where they were residing. Thereafter, he lodged a complaint Ex. PW-1/A. At the time of incident his daughter was 15 years old. He had also filed a petition before the Hon'ble High Court of Delhi and upon the persistent efforts of the Hon'ble High Court of Delhi, the custody of his daughter was handed over to him. The accused had taken his daughter to Bathala, Punjab. After the custody of his child was handed over to him, the negotiation of marriage between his daughter and accused took place. Thereafter, he consented to the marriage of his daughter with the accused and accordingly marriage between the accused and his daughter was solemnized as per customs. He further deposed that since his daughter had married the accused, he did not want to pursue this case. In his cross examination conducted by Ld. APP for the State he denied the suggestion that he had stated to the police that the accused had a quarrel with his son before running away with his daughter. He further denied the suggestion that he had stated to the police that his daughter had called him from mobile phone number 7042027434 from Punjab and informed him about her marriage with accused. The witness further deposed that no statement under Section 161 Cr.P.C State Vs. Istkhar, FIR No.145/2017 Page.3 of 11 Mark-X was ever given by him to the police. He relied upon photograph of his daughter Ex. P-1.
PW-1 was duly cross examined.
(ii) PW-2 i.e. prosecutrix 'A' deposed that in the year 2017, she was in contact with the accused as the accused was working at a factory at Sarai Kale Khan. She further deposed that she did not remember the day of the incident, however, it was in the year 2017, when she took the accused to Bathala, Punjab, where the sister of the accused used to reside. They got married at a Masjid in Amritsar. Thereafter, she informed her parents about her marriage with the accused through telephone. As her father got the FIR registered in the present matter, the police officials took them to Delhi and thereafter she was shifted to Child Welfare Committee and was interrogated there. Thereafter, she was taken to Hon'ble High Court of Delhi where she was directed to go with her parents and accordingly, she came to her parental house. Thereafter, she requested her father for her marriage with the accused. Her father agreed for the same and her marriage was solemnized with the accused as per customs. During investigation her statement u/s.164 Cr.P.C. Ex. PW-2/A was recorded by Ld. MM. In her his cross examination conducted by Ld. APP for the State she denied the suggestion that the accused took her from her house without her and her parent's permission. She admitted that 05.02.2002 was her date of birth as registered in school records. She further admitted that on 20.06.2017 police reached at Bathala, Punjab and took her and the accused to Delhi. A recovery memo exhibited as Ex. PW-2/B. She State Vs. Istkhar, FIR No.145/2017 Page.4 of 11 denied the suggestion that the accused took her to Bathala, Punjab without her consent. She further denied giving any statement under Section 161 Cr.P.C. marked as Mark-X1. She denied the suggestion that she was cajoled by the accused and she came under his influence and went away with him.
PW 2 was not cross examined by the Ld. Counsel for the accused despite availing opportunity.
(iii) PW-3 Smt. Kusum Lata, Incharge, SDMC Primary School, Sarai Kale Khan, New Delhi proved a letter dated 05.05.2017 as Ex. PW-3/A which was with respect to the date of birth of prosecutrix 'A'. She also proved another letter dated 05.05.2017 as Ex. PW-3/B, and the document bearing number 5461 dated 03.08.2010, certified copy of register maintaining entry and date of birth of the student as Ex. PW-3/C (OSR) (Colly).
PW-3 was not cross examined by the Ld. Counsel for the accused despite availing opportunity.
(iv) PW-4 ASI Mahender Singh/ Investigating Officer deposed that on 24.04.2007 he was posted as ASI at PP Sarai Kale Khan, PS Sunlight Colony, when the present case was marked to him after registration of FIR. He recorded the statement of complainant u/s.161 Cr.P.C and thereafter conducted search operation of victim/prosecutrix 'A' and the accused. However, they were unable to trace them. Thereafter, after technical surveillance, mobile location of victim was found to at Batala, Punjab as the victim had called his father from mobile number. On 20.06.2017, he alongwith State Vs. Istkhar, FIR No.145/2017 Page.5 of 11 W. Ct. Saraswati and Ct. Mahesh went to Batala, Punjab where the location of the number was located at the house of Roshan Lal. Police officials of police post of Batala also accompanied them to the abovesaid location where the victim was found at the abovesaid address of Roshan Lal. However, the accused was not present there. Thereafter, the victim was taken into custody by W. Ct. Saraswati and she was taken to police post Batala. The witness relied upon recovery memo Ex. PW-2/B, the site plan of recovery of prosecutrix 'A' Ex. PW-4/A, and daily dairy as Ex. PW-4/B. The witness further deposed that after reaching Delhi, medical examination of the victim was got conducted. However, the victim had refused to undergo internal examination. He obtained MLC Ex. PW-4/C of the victim. Thereafter, the statement under section 164 Cr.P.C Ex. PW-2/A of the victim was got recorded. He had also recorded the statement under section 161 Cr.P.C. Thereafter, victim was sent to Prayas. On 22.06.2017, accused Istkhar came to the police post Sarai kale Khan alongwith his relative Ikram. He interrogated the accused and served upon him notice under section 41 of Cr.P.C. Ex. PW-4/D and released the accused thereafter. The father of the victim had filed habeas corpus writ petition before the Hon'ble High Court of Delhi even prior to the recovery of the girl. After recovery of victim Aisha Khatoon she was produced before the High Court. The said writ petition was disposed of and the victim was sent to Prayas again. The victim was also produced before CWC and as per the direction of CWC, custody of victim was handed over to her father. During investigation, he got verified the age of victim from Nagar Nigam Prathmika Vidayala, Sarai Kale Khan and obtained the documents Ex. PW-3/C (colly), PW-3/A and Ex. PW-3/B in this regard. As per State Vs. Istkhar, FIR No.145/2017 Page.6 of 11 record, date of birth of the victim was 05.02.2002 and she was minor at the time of the incident. He further relied upon seizure memo dt. 17.05.2017 Ex. PW-4/E. He further deposed that during investigation, mobile number of accused was put under surveillance and one Shakila was found in possession of the abovesaid mobile and charger. He seized the same from the Shakila. He identified the said phone and charger Ex. P-1 (Colly). He also identified the accused in the court. He further deposed that during investigation, he recorded the statement of witnesses which was on record from Diary No.3 to Diary No.59 exhibited as Ex. PW-4/F (Colly).
This witness was duly cross examined by Ld. Defence counsel.
6. Prosecution evidence was closed vide order dated 08.03.2022.
7. Statement of accused u/s 313 r/w 281 of Cr.P.C was recorded on 08.03.2022 wherein the accused denied the incriminating evidences appearing against him and did not wish to lead defence evidence.
8. Subsequently, final arguments from the counsel for accused and Ld. APP for the State were heard.
9. In the present matter, the accused is facing trial under Section 363 IPC on the allegation that on 24.07.2017 he kidnapped the prosecutrix 'A' from the lawful guardianship of her father/complainant Mohd. Razique. The offence of "kidnapping from lawful guardianship" is defined in the first paragraph of Section 361 of the Indian Penal Code:
"361. Kidnapping from lawful guardianship.--Whoever takes or entices any minor under sixteen years of age if a male, or State Vs. Istkhar, FIR No.145/2017 Page.7 of 11 under eighteen 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 such guardian, is said to kidnap such minor or person from lawful guardianship."
10. The offence under Section 361 IPC is punishable under Section 363 IPC. It is clear from the bare reading of Section 361 IPC that taking or enticing away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping. The words "takes" and "entices" have been explained by the Hon'ble Supreme Court in Thakorlal D. Vadgama v. State of Gujarat, (1973) 2 SCC 413 as under:
"The word "takes" does not necessarily connote taking by force and it is not confined only to use of force, actual or constructive. This word merely means, "to cause to go", "to escort" or "to get into possession". No doubt it does mean physical taking, but not necessarily by use of force or fraud. The word "entice" seems to involve the idea of inducement or allurement by giving rise to hope or desire in the other."
11. It is thus clear that for an offence punishable under Section 363 IPC, it must be proved that the part played by the accused amounts to "taking" or "enticing" the victim out of the keeping of her lawful guardian. On the other hand, if the minor leaves her parental home completely uninfluenced by any promise, offer or inducement emanating from the guilty party, then the latter cannot be considered to have committed the offence as defined in Section 361 IPC. It was observed by Hon'ble High Court of Delhi in Bunty v. State (Govt. of NCT of Delhi), 2011 SCC OnLine Del 1355 that:
State Vs. Istkhar, FIR No.145/2017 Page.8 of 11 "9. In this case, prosecutrix had accompanied the appellant voluntarily without any use of force exercised by him. It is not a case wherein he had taken the prosecutrix after enticing her. Prosecutrix had travelled with the accused to different places outside Delhi without raising any alarm or complaining to fellow passengers that she had been taken away by force. If a minor accompanies accused voluntarily without any offer or allurement then offence under Section 363 IPC is not made out.
12. In the present case, it is not in dispute that on the date of occurrence i.e. 24.04.2017 the victim/prosecutrix 'A' was minor. State examined PW-3 Smt. Kusum Lata, Incharge, SDMC Primary School to prove the said fact through the prosecutrix's date of birth recorded in her school records.
13. However, in order to convict the accused under Section 363 IPC, it must also be proved that the part played by the accused amounts to "taking" or "enticing" the victim/ prosecutrix 'A' out of the keeping of her lawful guardian. In order to prove the same, state examined the father of the victim/prosecutrix as PW-1 who deposed that on 24.04.2017 his daughter was not found in her room and could not be traced till midnight. Further, that accused Istkhar used to work at a nearby factory at that time and on the same day he was also found missing from his residence. Perusal of his testimony shows that nowhere in his examination he explained the act of the accused which could amount to "taking" or "enticing" the victim out of the keeping of her lawful guardian. In fact, he admitted in his cross examination that he was told by his daughter that she went with the accused on her own. Mere fact that the accused and the victim went missing together is not sufficient to establish offence punishable under Sec.363 IPC.
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14. State also examined the prosecutrix 'A' as PW-2 who deposed that in the year 2017 she took the accused to Bathala, Punjab at residence of the accused's sister and thereafter, they got married in Amritsar. She further deposed that after the FIR was lodged, she was traced by the police and returned back to her parental house. She further deposed that subsequently, upon her request to his father, her marriage was solemnized with the accused with consent of her father and as per customs.
15. Perusal of testimony of PW-2 shows that nowhere she deposed that she was induced or allured or was taken or caused to go with the accused. Upon her cross-examination by the Ld. APP she denied the suggestion that she was cajoled or influenced by the accused to go away with him. She even denied giving any statement to police under Section 161 Cr.P.C. Perusal of her statement under Section 164 Cr.P.C. further shows that she had specifically stated therein that on 23.04.2017 she called the accused through phone and at her instance they left for Bawana and then for Punjab.
16. Clearly, there is not a word in the deposition of the prosecutrix 'A' from which even an inference could be drawn that she left the house of her parents at the instance or even at suggestion of the accused. In fact, she deposed that it was her who took the accused to Bathala, Punjab.
17. In these circumstances I do not find anything from which even an inference could be drawn that the accused is guilty of taking away the prosecutrix 'A' out of the keeping of her father. The essential ingredients of the offence of kidnapping are missing in the present case.
18. Therefore, upon an evaluation of the entire case of the prosecution, I am of the considered opinion that the prosecution has not been able to State Vs. Istkhar, FIR No.145/2017 Page.10 of 11 prove its case beyond reasonable doubt.
19. Accused Istkhar is, thus, hereby acquitted for the offence punishable under section 363 IPC.
Digitally signedAnnounced in open RAHUL by RAHUL VERMA VERMA Date: 2022.03.23 court on 23.03.2022 13:01:58 +0530 (Rahul Verma) MM-07 (SED)/ SAKET COURT/ 23.03.2022 State Vs. Istkhar, FIR No.145/2017 Page.11 of 11