Delhi District Court
State vs . 1. Manju W/O Sanjeev on 27 May, 2013
IN THE COURT OF SH. RAKESH KUMAR
ADDL. SESSIONS JUDGE02 (NORTH EAST)
KARKARDOOMA COURTS, DELHI
SC No. 87/2011
FIR No. 196/2010
Police Station Shahdara
U/Section 363/366/34 IPC
Reserved for orders on 23.05.2013
Judgment announced on 27.05.2013
State V/s. 1. Manju W/o Sanjeev
R/o 2/13, Jagjiwan Nagar,
Shahdara, Delhi.
2. Harish S/o Rishi Pal
R/o 6/5, Jagjiwan Nagar,
Shahdara, Delhi.
3. Rishi Pal S/o Bhagwan Singh
R/o 6/5, Jagjiwan Nagar,
Shahdara, Delhi.
4. Maya Devi W/o Rishi Pal
R/o 6/5, Jagjiwan Nagar,
Shahdara, Delhi.
5. Sanjeev S/o Ram Pal
R/o 2/13, Jagjiwan Nagar,
Shahdara, Delhi.
:J U D G M E N T:
1.The above named accused persons were charge sheeted U/s 363/366/34 IPC by SHO PS Shahdara with the allegations (SC No.87/2011) (State Vs. Manju etc.) D.O.O. 27.05.2013 Page no.1 of pages27 that they all in furtherance of their common intention kidnap a minor girl namely Komal aged about 16½ years out of the legal guardianship and without the consent of her legal guardian with intend that she may be compelled for marry with co accused Harish against her will.
2. FACTUAL MATRIX: As per prosecution, on 09.04.2010, the complainant Rajesh S/o late Sh. Harpal Singh came to the Police Station Shahdara and lodged a written complaint mentioning therein that his daughter namely Komal aged about 17 years student of class XII, to whom he left at her school at Gandhi Memorial School, Shahdara at 7 AM and when we went to take her back at 12 PM, he could not find her. He searched for her daughter on his level but of no avail. He was having suspicion that his daughter was kidnapped by one Harish S/o Rishi Pal R/o Jagjeewan Nagar, Shahdara by enticing her. On the complaint (which was assigned to IO ASI Gaje Singh for investigation) IO prepared tehrir and got the instant FIR registered U/s 363 IPC. During the course of investigation IO recorded the statement of witnesses and made efforts to trace the girl and the culprits and during that course he came to know that accused Harish alongwith girl Komal could be available at the house of relative of Harish namely Dal Chand at Murad Nagar, UP.
Accordingly, he went there and got recovered the said girl Komal and accused Harish was arrested in the instant matter. Statement of girl was recorded wherein she stated that nothing wrong (Galat Kaam) has been done with her. Thereafter, accused was sent to JC. Statement of girl Komal was got recorded U/s 164 Cr.P.C wherein she alleged that she knew Harish for the last about 2½ years and he was in love with her and they both wanted to marry with each other. On one day (SC No.87/2011) (State Vs. Manju etc.) D.O.O. 27.05.2013 Page no.2 of pages27 there was half working day in the school. It was probably on 08.04.2010 or on 09.04.2010, she came out of the school, where Harish was already standing and he caught hold of her hand and took her to a vehicle, in which his mother and father were sitting. They all told her that they had talked to her parents and they were agreed for her marriage with Harish and they had come here to take her to the temple where her parents would be available. They made her to sit in the vehicle and at Durga Puri Chowk, brother in law and sister of accused Harish met them and they also sat in the vehicle and after some distance parents got down from the vehicle. Then they made her to drink tea and thereafter, she went asleep and on awakening, she found herself in Murad Nagar. After some time police came there. She, however, stated that neither she was got married with Harish nor Harish did anything wrong with her. He did not make any physical relations with her. Then, on the statement of Komal, Sec.366/34 IPC were added in the instant case and search for the parents and jija & sister of accused were made. Thereafter, on the transfer of ASI Gaje Singh, the investigation was assigned to ASI Raj Kumar. On 29.06.2010 accused Rishi Pal and Maya Devi and on 22.09.2010 accused Sanjeev and Manju got anticipatory bail. On 05.09.2010 accused Rishi Pal and Maya Devi and on 24.09.2010 accused Sanjeev and Manju after interrogation were formally arrested in this case and then were released on bail in terms of the aforesaid orders of anticipatory bail. Than on completion of investigation, challan was presented before the Court of Ld. MM :KKD: Delhi, who after complying the provisions of Section 207 Cr.P.C, committed the case for sessions being the offence exclusively triable by the court of sessions and than by way of assignment, the case was received in this court for trial.
(SC No.87/2011) (State Vs. Manju etc.) D.O.O. 27.05.2013 Page no.3 of pages27
3. After hearing respective submissions of both the sides and on finding sufficient prima facie material for framing of charge, a charge u/Sec.363/366/34 IPC was framed against all the accused persons, to which they pleaded not guilty and claimed trial.
4. After framing of charge the case was fixed for prosecution evidence and the prosecution examined as many as fourteen witnesses in support of its case and than the prosecution evidence was closed. Than, the accused persons were examined U/s 313 Cr.P.C, who while denying the case of prosecution claimed innocence and stated that they have been implicated in this case at the instance of complainant as accused Harish had love affair with the girl Komal and complainant was annoyed of it. However, they preferred not to lead any evidence in their defence.
5. PW1 Rajesh testified that on 08.04.2010 at about 7.00 AM, he had gone to drop his daughter namely Komal aged about 16 years to Gandhi Memorial School, Shahdara, where she used to study in class 12. On the same day at about 12.00 PM, when he went there to pick up his daughter, he did not find her and she went missing. He made search for her daughter at his level but of no avail. Thereafter, he got suspicion on the accused Harish behind the missing of his daughter. He while giving the description of his daughter including the wearing cloths, lodged his report Ex.PW1/A to the police on 09.04.2010. He also produced her birth certificate issued by Registrar, Birth and Death, MCD Ex.PW1/B wherein her date of birth mentioned as 23.04.1994, thereby showing that her daughter was a minor on the date of incident. He also th produced on record 10 class certificate and mark sheet of her daughter issued from CBSE, copies of the same are (SC No.87/2011) (State Vs. Manju etc.) D.O.O. 27.05.2013 Page no.4 of pages27 Ex.PW1/C. He further testified that prosecutrix had appeared in an admission test conducted by the Govt. for admission of Govt. SKV in class VIII and she was declared successful. He had gone to the school i.e Govt. SKV, GT Road, Shahdara, Delhi with result of the admission test Ex.PW4/B and filled up the admission form in his own handwriting Ex.PW4/A on 01.05.06 and his daughter was admitted in that school.
During cross examination he stated that he was blessed with four children and prosecutrix is his eldest child. His wife had delivered prosecutrix in hospital. He conceded that in the date of birth certificate Ex.PW1/B, in column 3, where the name of child is provided, his daughter's name is not mentioned. He, however, clarified that the name of child is not written at the time of birth. He further stated that subsequently on 10.07.97, the name of prosecutrix was inserted at portion A in Ex.PW1/B. He clarified that the name of the child was not decided at the time of her birth and subsequently he got her name entered in the certificate at encircled portion A which mentioned the serial number and date of insertion of the name. He, however, conceded that the said insertion/addition is not authenticated by signature or stamp of any authorized officer/ official. He further conceded that accused Harish was known to him prior to the incident. He had met his daughter when she had come to the Police Station. His daughter was recovered on 09.04.2010 in the evening. He conceded that on 10.04.2010 his daughter had gone to his house with him, however, he clarified that on inquiry made by the Ld. MM, his daughter expressed her desire to go with her parents and accordingly, Ld. MM had permitted his daughter to go with him. He conceded that medical examination of his daughter was conducted subsequent to his meeting with her. He stated that (SC No.87/2011) (State Vs. Manju etc.) D.O.O. 27.05.2013 Page no.5 of pages27 police had come to his house to take the photocopy of document regarding her date of birth. He conceded that for getting the recovery of his daughter effected, his relative had accompanied with police and he was on the way in another vehicle and when he had reached near Hindon river, he received call from police that they were coming with accused and his daughter, so he took U turn from Hindon river itself. His friend Sunder and another person, whose name he could not tell, had accompanied police to recover his daughter. In his presence, police had not recorded their statements. He further stated that his daughter Komal was admitted in a private school namely Usha Public School in class I but in the admission form Ex.PW4/A, he did not disclose the factum of her studying in Usha Public school as she had studied in Usha public school only for some time and thereafter, she had studied at home. He conceded that he had not annexed any birth certificate with the admission form Ex.PW4/A as he was not asked for the same. He denied that his daughter was above 18 years on the date of occurrence.
PW2 SI Prasanjeet Singh, the Duty Officer, confirmed that on 09.04.10 at about 1.25 a.m ASI Gaje Singh handed over him rukka for registration of FIR u/s 363 IPC and on the basis of same, he registered the present FIR u/s 363 IPC. He proved on record copy of FIR as Ex.PW2/A bearing his signatures at point A. He also proved on record his endorsement made on rukka as Ex.PW2/B. He further stated that after registration of FIR copy of FIR and original rukka were sent to ASI Gaje Singh through Ct. Babu Lal.
PW3 Ms. Komal (prosecutrix) testified that in the year 2010 she was the student of Rajkiya Sarvodya Kanya Vidyalaya, Shahdara and her date of birth is 23.04.94.
(SC No.87/2011) (State Vs. Manju etc.) D.O.O. 27.05.2013 Page no.6 of pages27 Accused Harish, (correctly identified) used to reside in their locality in Jagjeevan Nagar, Shahdara, Delhi. He used to tease her in the way from her house to school or from the school to her house (school aate jaate mujhe chhedta tha). He wanted to establish friendship with her and used to say that he was willing to marry her but she refused his offer. On 08.04.10 at about 10.00 a.m she came out of her school premises as on that day the school lasted only for first half and at that time, accused Harish was found standing outside the school premises near the school gate. Accused while extending threats to kill her (in case she would raise alarm), forcibly took her away in a car. He kept on roaming the car at so many places (din bhar gumata raha) and thereafter took her to corner of the street near to his house. Thereafter, accused Maya (mother of accused Harish) (correctly identified) came there and took her to her house. They got her school uniform changed and, thereafter, she was taken to Durga Puri by accused Maya and Harish where the accused Manju (elder sister of accused Harish) and accused Sanjeev (brother in law of accused Harish) were present (correctly identified). Another accused Rishi Pal (father of accused Harish) (correctly identified) was not present but he was giving instructions to all accused persons for further course of action. Thereafter, she was sent to some place in UP known as Rahispur. Thereafter, one brother in law of accused came there and took her to the Court and she was made to see some lawyer and she was asked to tell her birth of year as 1991 instead of 1994. She was made to sign on some register. Accused arranged the money and from there, he took her to Murad Nagar to the house of one of his relatives. She was rescued by the police on 09.04.10 from Murad Nagar. Accused Harish was also (SC No.87/2011) (State Vs. Manju etc.) D.O.O. 27.05.2013 Page no.7 of pages27 apprehended. She stated that she was kidnapped by accused persons with the motive to marry. On 09.04.2010, she was taken to the hospital for medical examination and her mother was also accompanied her besides police officials. The MLC Ex.PW3/A bears her RTI at point A. Her statement recorded u/s 164 Cr P.C Ex.PW3/B bears her signatures at point A. She claimed that as she was under fear of the accused persons and she was tutored by accused persons to make a favourable statement, so she could not make her complete statement.
The witness was cross examined by Ld. Addl. PP on certain points, after taking permission of the Court, during which she stated that at the time when she was made to sit in car by accused Harish, accused Maya and Rishi pal were already there in the car and they had told her that they had spoken to her parents with regard to her marriage. She was made to drink tea, consequently, she went asleep and thereafter, she found herself in Murad Nagar. Accused Harish was arrested by the police on 09.04.10. Personal search memo of Harish was conducted vide memo Ex. PW 3/C bearing her signatures at point A. Accused Rishi Pal and Maya Devi were arrested from Jagjeevan Nagar on 05.09.10 vide Arrest memos Ex.PW3/D & Ex.PW3/E respectively and their personal search was conducted vide personal search memos Ex.PW3/D1 & Ex.PW3/E1 respectively. Lateron, on 24.09.10 accused Manju and Sanjeev were arrested in PS Shahdara vide Arrest Memos Ex.PW3/F & Ex.PW3/G respectively and their personal search was conducted vide personal search memos Ex.PW3/F1 & Ex.PW3/G1 respectively.
During cross examination by Ld. Counsel for accused persons, she stated that on the day of occurrence she had left her house at around quarter to seven in the morning with her (SC No.87/2011) (State Vs. Manju etc.) D.O.O. 27.05.2013 Page no.8 of pages27 father and she had reached to her school at around 7.00 a.m. On 08.04.10 she had attended her school. She stated that she had never made any complaint in the school regarding teasing by the accused Harish as accused Harish had not teased her inside the school. She did not raise alarm when accused forcible caught hold of her hand as accused had threatened her to kill her and had said her not to raise alarm or to make any drama. She conceded that she had not stated about giving of threats by the accused to the police nor she had stated to the police that she was taken to the corner of the street near his house. She conceded that in her statement u/s 161 Cr. P.C, she did not mention the names of places where she was taken by the accused on 08.04.09 and had simply stated idhar udhar ghumata raha. She conceded that she had not stated to the police that her mother met her in the corner or about changing of her clothes by the accused persons or about taking of her to Durga Puri or about meeting with other accused at Durga Puri. She claimed that since she was not asked by the police officials, so she had not given such statement to the police. She conceded that there is a police post near peepal tree at Durga Puri Chowk and she was taken near the mandir at Durga Puri chowk and at that time public persons were passing through from there and shops were opened at that time. She did not raise alarm there as she was threatened by the accused persons. She conceded that the accused persons were not armed with any deadly weapon. She claimed that she had not gone to the police booth as booth was on the other side of the road. She conceded that accused persons were previously known to her being of the same locality. She claimed that she was taken from her school in a black colour Santro car by the accused but she could not (SC No.87/2011) (State Vs. Manju etc.) D.O.O. 27.05.2013 Page no.9 of pages27 tell the number of the car as she could not read the same out of fear. She conceded that in her statement she had not stated to the police about taking of her to Rahispur, Ghaziabad or about taking of her to the court by the accused Sanjeev in the car or about the instructions given by the accused persons to tell her year of birth as 1991 instead of 1994 or about taking her signatures on some papers by the accused persons. She could not tell as to who had taken the police to Muradnagar from where she was got recovered and accused Harish was arrested. She conceded that she had seen Rishi Pal, father of accused Harish and friend of her maternal uncle in the company of police. She confirmed that she had not seen any police officials of UP police along with officials of Delhi Police. She could not tell as to whether the persons of the locality were collected at the time of her rescue from the house nor she could tell the measurement of the house. She conceded that in her presence the police had not called the neighbours. She claimed that her parents did not meet her in the way from Murad Nagar to Delhi, rather, they met her in the PS Shahdara but she did not enter into conversation with them in the PS. They were simply sitting there. She conceded that her mother remained with her in the PS. She conceded that from the court she had gone to her own house with her parents and she had come to give her statement u/s 164 Cr. P.C with her parents. Police had not recorded her supplementary statement subsequent to 09.04.10. She had signed on arrest memo and personal search memo in the PS but she had not gone through the contents of the said documents nor the contents thereof were read over to her. No writing work was done at Murad Nagar. On showing one photograph Mark DX to the prosecutrix, she stated that "photo toh mera hai par meri (SC No.87/2011) (State Vs. Manju etc.) D.O.O. 27.05.2013 Page no.10 of pages27 rajamandi se nahi liya gaya hai". She conceded that she had neither lodged any complaint to the police regarding taking of photograph Mark DX forcibly or without her permission nor she had informed her parents about taking of the said photograph mark DX forcibly by accused persons. She claimed that she was threatened by the accused Harish. She conceded that she had not lodged any complaint regarding threatening given by the accused Harish. She conceded that on 25.12.08 the marriage of Sonia (sister of accused Harish) had taken place. Her father was called being the neighbourer and her father had also attended the marriage with other neighbours. She denied that they were having visiting terms to the house of accused persons or that she had made a false statement under the influence of her parents to falsely implicate all the accused persons. She claimed that police had tutored her to make her statement u/s 164 Cr. P.C in favour of accused before Ld. MM and she had done accordingly. She did not inform Ld. MM regarding tutoring by police.
PW-4 Smt. Nirmal Dhyani, incharge of Govt. Sarvodya Kanya Vidyalaya, GT Road, Shahdara, Delhi, while producing the Admission register as well as the admission form of the school pertaining to year 2006 in respect of the prosecutrix of the case, confirmed that prosecutrix was admitted in their school on 01.05.06. Father of prosecutrix namely Rajesh Kumar had filled up the admission form prescribed by the govt. At the time of the admission he had filed Internet downloaded result of the admission test conducted by the Govt. showing the date of birth of prosecutrix as 23.04.1994. The copy of the admission form filled up by Sh. Rajesh Kumar and duly signed by Principal and class teacher is Ex. PW 4/A and copy of the proof of date of birth is Ex.PW4/B. She also proved on record (SC No.87/2011) (State Vs. Manju etc.) D.O.O. 27.05.2013 Page no.11 of pages27 the copy of admission register, relevant portion of which duly attested by Vice Principal of school as Ex. PW 4/C. During cross examination she conceded that the certificate issued by Delhi Administration or MCD was not produced by father of girl and whatever documents were produced in support of date of birth, she has produced.
PW5 Sh. Sanjay Khanagwal, the then Ld. MM (NE), KKD Courts, proved the statement of prosecutrix recorded U/s 164 Cr.P.C as Ex.PW3/B bearing his signatures at point B and the same was recorded vide application Ex.PW5/A. One copy of the statement was given to the IO vide application Ex.PW5/B. PW 6 Ct. Babu Lal confirmed that on 09.04.2010 Duty Officer ASI Prasannjeet handed him the rukka and computerized copy of FIR for further handing over to IO ASI Gaje Singh, to which he had handed over the same to ASI Gaje Singh at about 2.15/2.30 AM.
PW 7 Ct. Vinay, another official witness, testified that on 09.04.10 he alongwith L/Ct. Priyanka had joined investigation with IO ASI Gaje Singh and during investigation, it was revealed that Harish and the prosecutrix were at Murad nagar and accordingly they went to Murad Nagar along with Rishi Pal (correctly identified), where accused Harish (correctly identified) and prosecutrix were recovered. Accused Harish was arrested vide arrest memo Ex. PW 7/A and his personal search was conducted vide personal search memo Ex.PW 3/C. Girl was recovered through recovery memo and then they all returned to the PS along with prosecutrix and accused.
During cross examination, he stated that departure entry was made in the PS at the time of leaving for Murad nagar but he could not tell the DD number. He claimed that they had (SC No.87/2011) (State Vs. Manju etc.) D.O.O. 27.05.2013 Page no.12 of pages27 gone Murad Nagar in private car but registration number thereof, he could not tell. The vehicle was arranged by IO. Village head was not called on the spot. They had straightway gone to the house of Dal Chand. Public persons from neighbourhood were not called in his presence.
PW- 8 Dal Chand testified that he knew accused Harish being his grand son in relation but except this, he does not know anything else. He confirmed that he had gone to the PS being the relative of accused and IO obtained his signatures and inquired from him his name etc. He identified his signatures on recovery memo Ex.PW8/A of the prosecutrix at point A. This witness while declaring hostile was cross examined by Ld. Addl. PP during which he was confronted with his statement recorded U/s 161 Cr.P.C Ex.PW8/PA and he denied that on 08.04.10 at about 11.00 p.m accused Harish had come to his house with a girl and he could understand that the Harish had brought this girl by abducting her or that he had telephonically informed to his relative Rishi Pal or he had informed the police on being advised and handed over her custody or he did not scold or threatened them under apprehension that they might go away far. He denied that the accused had brought prosecutrix, a minor girl, to his house and it was him only, who had handed over the custody of her to the police.
PW- 9 Ct. Devesh Kumar testified that on 05.09.10 he along with IO ASI Raj Kumar and prosecutrix had gone to House No.6/5 Jagjeevan Nagar, Shahdara, Delhi, where accused Risipal (correctly identified) was arrested vide arrest memo Ex.PW5/D in this case at about 5.00 p.m and his personal search was conducted vide personal search memo (SC No.87/2011) (State Vs. Manju etc.) D.O.O. 27.05.2013 Page no.13 of pages27 Ex.PW5/D1 bearing his signatures at point A. PW-10 Sh. Rakesh Saxena, Sub Registrar (Death and Birth Department), City Zone, MCD Office, Delhi, produced the original Birth Register mentioning therein the record regarding the registration of birth of a female child of Smt. Pushpa W/o Sh. Rajesh R/o C65 New Seelam Pur, Delhi vide Registration no. 2594 dated 04.05.94, copy of the same is proved on record as Ex.PW 10/A. He further stated that on the basis of said entry a birth certificate Ex.PW10/B was issued. According to their record the said female child was born on 23.04.94 at Kasturba Gandhi Hospital.
PW-11 Dr. Modesta, Sr. Resident, Department of Gynecology, GTV hospital, stated that she is acquainted with the handwriting and signatures of Dr. Shuchi. After seeing the MLC Ex.PW3/A of prosecutrix, female, 16 years, she stated that the said girl was brought in the hospital on 09.04.10 at about 5.00 p.m by W/Ct. Priyanka with request to medically examine her. The Patient had given alleged history of abduction at 10.00 a.m on 08.04.10 and she returned home on 09.04.10 at about 11.00 a.m. She had not alleged any allegation of sexual contact. She was examined and on local examination her hymen was found torn and there was no other injury mark prior to her medical examination. The RTI of patient at point A and of her mother was taken who had given consent for examination. She further stated that the MLC Ex.PW3/A is in the handwriting and signatures of Dr. Shuchi and she identified the signatures of Dr. Shuchi at point X thereupon.
PW-12 W/Ct. Priyanka testified that on 09.04.10 she had joined the investigation with ASI Gaje singh, Ct. Vinay. Accused Rishi Pal (correctly identified) also joined them. They (SC No.87/2011) (State Vs. Manju etc.) D.O.O. 27.05.2013 Page no.14 of pages27 had gone to Murad Nagar, Ghaziabad, UP and from the house of their relative namely Dal Chand, prosecutrix girl and accused Harish (correctly identified) were recovered. They returned to PS. She had accompanied prosecutrix to GTB hospital and she was medically examined. Doctor handed her four sealed parcel along with sample seal of GTB hospital which she handed over to the IO. IO seized the same vide memo Ex.PW12/A bearing her signatures at point A. During cross examination, she stated that IO had made departure entry in the Rojnamcha prior to leaving for investigation but she could not tell the DD number. They had left the PS prior to 12 noon. Around an hour was taken to reach the village from where the accused and prosecutrix were recovered. She could not tell if IO had called any village head at the time of recovery of the prosecutrix. The main door of the house from where the prosecutrix and accused were apprehended were facing towards western side and the gate was made of iron. She conceded that some public persons had gathered when they reached there. IO had requested those persons to join investigation. She expressed her ignorance if IO had recorded their statements or not. She also could not tell if any public persons had signed any document or not. She further could not tell if the local police was joined or not. Dal Chand was of the age 45 to 48 years to her estimation. Parents of the girl had come to the PS. They had conversed with the prosecutrix. Thereafter, they had gone to the hospital. They returned from the GTB hospital at about 7/7.30 p.m. Her name was mentioned in the DD. She denied that she had not gone to Muradnagar. She conceded that in her presence statement of prosecutrix was not recorded.
PW13 ASI Raj Kumar testified that on 29.06.2010 (SC No.87/2011) (State Vs. Manju etc.) D.O.O. 27.05.2013 Page no.15 of pages27 accused Rishi Pal and Maya Devi were granted anticipatory bail. On 05.09.2010, they came to the PS and after interrogation they were arrested vide arrest memos Ex.PW3/D & Ex.PW3/E respectively. Their personal search were conducted vide memos Ex.PW3/D1 & Ex.PW3/E1 respectively. He recorded the statement of PWs including of prosecutrix. Accused Manju and Rajeev were arrested on 05.09.2010 vide arrest memos Ex.PW3/F & Ex.PW3/F1 respectively. Their personal search were conducted vide memos Ex.PW3/G & Ex.PW3/G1 respectively. He correctly identified all the accused persons.
PW14 SI Gaje Singh testified that in the intervening night of 08/09.04.2010 he was on emergency duty and at about 12:30am, one Rajesh, S/o Late Sh. Harpal Singh came to PS and he got recorded his statement Ex.PW1/A regarding missing of his daughter. Thereafter, on the basis of his above said statement, he prepared rukka Ex. PW14/A and it was presented before the duty officer by him for registration of the case. Thereafter, he alongwith complainant Rajesh went to the spot i.e. Gandhi Memorial School, Shahdara where the complainant left her daughter at about 7am. In the meantime, Ct. Babu Lal reached there and he handed over Rukka in original and computerized copy of FIR Ex. PW2/A, to him. Thereafter, they all went in search of the girl but she could not be traced out. Thereafter, he alongwith Ct. Babu Lal came back to the PS. On 09.04.2010, father of accused namely Rishi Pal came to the PS and he informed him that he received a phone call of his relative namely Dal Chand and Dal Chand informed him that his son Harish (accused) and prosecutrix were at the house of Dal Chand at Muradnagar. Thereafter, he alongwith W/Ct. Priyanka, Ct. Vinay and father of accused (SC No.87/2011) (State Vs. Manju etc.) D.O.O. 27.05.2013 Page no.16 of pages27 Rishi Pal went to Muradnagar at the house of Dal Chand. On reaching there, accused Harish alongwith prosecutrix were found present there. The girl was taken into custody vide recovery memo Ex.PW8/A bearing his signature at pointB. Accused Harish was also apprehended and interrogated. Thereafter, he was arrested vide arrest memo Ex.PW7/A. His personal search was also conducted vide personal search memo Ex.PW3/C. Thereafter, accused Harish and prosecutrix were brought to PS Shahdara. Then, medical examination of prosecutrix was got conducted through Lady Ct. Priyanka and that of accused through Ct. Manoj vide MLC Ex.PW3/A (of prosecutrix) and MLC Ex.PA (of accused Harish). After the medical examination of prosecutrix, W/Ct. Priyanka handed over four parcels sealed with the seal of GTB Hospital alongwith sample seal to him and he took the same into possession vide seizure memo Ex.PW12/A. Ct. Manoj also handed over four parcels sealed with the seal of MLC GTB Hospital alongwith sample seal to him and he took the same into possession vide seizure memo Ex.PW14/B. Thereafter, the accused was put in the lock up of PS Shahdara. Further on 10.04.2010, accused was produced before the concerned court and from there, he was remanded to J/C and the prosecutrix was released to her parents. On 12.04.2010, he moved an application Ex.PW5/A before the court concerned for recording the statement of prosecutrix u/s 164 Cr.P.C. On the same day, her statement Ex.PW3/A was recorded by the Ld. MM. Thereafter, he had also moved an application Ex.PW5/B for seeking the copy of statement and accordingly received the copy of proceedings u/s 164 Cr. PC. Thereafter, he was transferred and case file was handed over to MHC(R). Further on 09.04.2010, he had also prepared the site plan (SC No.87/2011) (State Vs. Manju etc.) D.O.O. 27.05.2013 Page no.17 of pages27 Ex.PW14/C at the instance of complainant Rajesh. He had also prepared the site plan Ex.PW14/D of place from where the prosecutrix alongwith accused were recovered.
During cross examination he conceded that they used to make the departure entry as well as the arrival entry in the Roznamcha. He further conceded that complainant Rajesh did not make any call on 100 number. He personally came in the PS and got recorded his statement. He conceded that in this case no missing report was lodged by the complainant. After recording the statement of complainant, he did not go to the house of accused Harish, however he clarified that he went to his house after recording of FIR. He did not make any departure entry at the time of going to the house of accused Harish. They did not go inside Gandhi Memorial School nor they made any knocking there, as it was night hours. He conceded that on 10.04.2010, he had not visited the Gandhi Memorial School. He had not procured any attendance register from the school to confirm that the prosecutrix had attended her class on 08.04.2010 or not. He had not tried to find out as to whether she was present at her house or not on that day. He also did not make any inquiry to find out the place of the birth of prosecutrix. He confirmed that accused Harish was earlier known to complainant Rajesh. Even earlier also complainant Rajesh had made a complaint against the accused Harish but he does not know the reason of lodging the complaint. On 09.04.2010, when prosecutrix was present in the PS, her parents were also present there. The parents of girl had entered into conversation with her at that time. He confirmed that the photograph markDX is of the accused Harish and the prosecutrix. The prosecutrix was handed over to her parents and she was not sent to Naari Niketan, as she (SC No.87/2011) (State Vs. Manju etc.) D.O.O. 27.05.2013 Page no.18 of pages27 was allowed to accompany with her parents in pursuance to the order of Ld. MM. He conceded that at the time of recording of the statement of prosecutrix u/s 164 Cr. P.C she was residing with her parents.
During cross examination, he conceded that he had not searched prosecutrix in her house. He had gone in search of girl at the house of accused Rishipal. When he reached there daughter of Rishipal was found present in the house and she told that she was alone at that time and her family members had gone to the hospital to see her ailing grand mother. He did not mention this fact in hisarrival entry. He did not make inquiry from the neighbourhood about the grand mother of the daughter of Rishipal (mother of Rishipal). He did not mention in his departure entry that on 09.04.2010 father of the accused Rishipal came to PS and he informed him that he received a phone call of his relative namely Dal Chand that his son Harish alongwith prosecutrix were at the house of Dal Chand at Murad Nagar. He could not tell whether there was any love affair between prosecutrix and accused Harish and the same has also not come in his knowledge during the investigation. He did not get lodge their arrival at Murad Nagar in the local police station. He did not call the pradhan of the village. Mohallah people gathered there when they apprehended the accused Harish and the girl. After their apprehension, he did not inform to the local police. He conceded that he did not cite any witness from locality on the papers of the arrest of accused Harish, however, he clarified that nobody agreed to join the investigation. He conceded that he did not give any notice to those mohalla people. He confirmed that he did not mention the particular place of arrest of accused Harish in his arrest memo Ex.PW2/A and only Murad Nagar, Ghaziabad, (SC No.87/2011) (State Vs. Manju etc.) D.O.O. 27.05.2013 Page no.19 of pages27 U.P is mentioned. He could not tell as to whether the defence colony near Railway Station Murad Nagar is a Government Colony or private colony. He could not tell the flat number from where prosecutrix was recovered. He conceded that in the recovery memo of prosecutrix, he did not mention the house number from where she was recovered. He could not tell about the area of defence colony. He also could not tell as to what was recovered from the personal search of the accused Harish. He further could not tell whether he had cited Dal Chand as a witness on the personal search memo as well as on the arrest memo of accused Harish. After seeing the arrest memo and personal search memo of accused Harish, he stated that he had not cited Dal Chand as a witness on both the papers. He denied that he did not cite Dal Chand as a witness on the arrest memo and personal search memo as he has not arrested accused Harish from the house of Dal Chand or that accused Harish was called by him in the PS when the prosecutrix and Dal Chand were already present in the PS and thereafter, accused Harish was arrested by him in the present case or that he obtained the signatures of Dal Chand on the recovery memo of prosecutrix in the PS. He had called the parents of the prosecutrix in the PS on 09.04.2010. The parents of the prosecutrix had also come in the court on 10.04.2010. He denied that prior to getting the statement recorded U/s 164 Cr.P.C, he and parents of prosecutrix had tutored her. He conceded that the site plan Ex.PW14/D does not bear the signatures of any public person.
6. After conclusion of plaintiff evidence, statements of accused persons were recorded under section 313 Cr.P.C wherein they claimed innocence on the ground of false implication in this case at the instance of complainant on the (SC No.87/2011) (State Vs. Manju etc.) D.O.O. 27.05.2013 Page no.20 of pages27 ground that accused Harish and prosecutrix were having love affair and he was against the same. It is categorically stated by accused Manju, Maya Devi, Rishipal and Sanjeev that they have been falsely implicated in this case being the relative of accused Harish. They opted not to lead any evidence in their defence.
7. I have carefully heard the rival submissions of both the sides. I have also perused the entire material placed on record.
8. According to Ld. Addl. PP for the State the case of the prosecution is crystal clear. By way of the documents Ex.PW1/B, Ex.PW1/C, Ex.PW1/D, Ex.PW4/A, Ex.PW4/B & Ex.PW4/C it has established beyond the shadow of doubt that the prosecutrix was a minor girl on the date of occurrence. Further PW1 the complainant has confirmed that his minor daughter i.e. the prosecutrix was kidnapped by the accused Harish in connivance with the co accused persons without his consent and wishes. The prosecutrix has categorically and specifically narrated the entire incident of her kidnapping and about the respective roles played by the accused persons. In her testimony, she while corroborating with her earlier statement recorded U/s 161 Cr.P.C and U/s 164 Cr.P.C confirmed that she was kidnapped by the accused persons with a motive to get her married with accused Harish against her wishes and desire. Thus, the prosecution has been successfully proved it case against all the accused persons and therefore, they all are liable to suffer an order of conviction against them for commission of offence punishable U/s 363/ 366/34 IPC.
Per contra according to Ld. Defence counsel the prosecution has been miserably failed to prove its case against the accused persons beyond the shadow of reasonable doubt.
(SC No.87/2011) (State Vs. Manju etc.) D.O.O. 27.05.2013 Page no.21 of pages27 First of all, the factum regarding the minor age of the prosecutrix is not established as per the requirement and mandate of law. Further the testimony of star witness of prosecution i.e. the prosecutrix, can not be relied upon because of the inherent short comings and contradictions. As such all the accused persons are entitled for an order of acquittal in their favour.
9. After giving due thoughts to the rival submissions of both the sides, I have come to the considered opinion that there is a substance in the claim of Ld. Counsel for the accused persons that the prosecution has been failed to prove its case against the accused persons beyond the shadow of reasonable doubt and therefore, the accused persons are entitled for an order of acquittal in their favour on account of benefit of doubt for the reasons firstly that the testimony of the star witness of the prosecution i.e. the prosecutrix, can not be safely relied upon because of the infirmities and contradictions therein. As noted earlier, the charge against accused persons is of kidnapping a minor girl out of the legal guardianship and without the consent of her legal guardian with intent to compel her to marry accused Harish against her will. The essential ingredients of kidnapping from lawful guardian are that the victim is a minor under 18 years of age, if female, and that she is taken out of the keeping of her lawful guardian without consent of said guardian by the accused. PW1 Rajesh is admittedly the father of minor girl and she was living with her parents on the relevant date and time and he is her natural guardian. He has affirmed on oath that accused Harish had taken away his daughter by enticing (behla fusla ke). As regards the age of the girl, besides the ocular evidence of the father of prosecutrix and of prosecutrix that she was below 18 years at the time of (SC No.87/2011) (State Vs. Manju etc.) D.O.O. 27.05.2013 Page no.22 of pages27 incident, the prosecution has produced before the court the record called from the Govt. SKV, GT Road, Shahdara i.e. copy of admission form no.33 duly filled by the father of prosecutrix Ex.PW4/A, copy of admission test result report Ex.PW4/B and copy of admission register Ex.PW4/C wherein the date of birth of prosecutrix is mentioned as 23.04.1994 but the said documents can not be relied upon for the determination of age of prosecutrix as it has been conceded by PW4 Smt. Nirmal Dhyani that the certificate issued by Delhi Administration or MCD was not produced by the father of prosecutrix and whatever documents were produced in support of date of birth, she has produced. Further prosecution has placed on record the special certificate of birth (detailed) Ex.PW1/B issued from the Office of Sub Registrar, Birth & Death, City Zone MCD but the said document is not proved on record as per the mandate of law specially in the circumstances when accused has challenged the authenticity of the said documents and suggestion regarding giving of lesser date of birth by the father of prosecutrix in school record and regarding majority (above 18 years) of prosecutrix have been put to the father of prosecutrix i.e. PW1. The prosecution has relied upon the document i.e. the special certificate of birth (detailed) Ex.PW1/B issued from the Office of Sub Registrar, Birth & Death, City Zone MCD Ex.PW1/B and onus was upon the prosecution to prove the genuineness/originality of the said document, which the prosecution failed. Perusal of the certificate Ex.PW1/B reveals that there is insertion of name of the prosecutrix at point A (hand written) in the said documents but there is no explanation as to how and in what circumstances the name of the prosecutrix was inserted on the certificate Ex.PW1/B at portion A and also the said insertion or (SC No.87/2011) (State Vs. Manju etc.) D.O.O. 27.05.2013 Page no.23 of pages27 addition was not authenticated by the stamp or signatures of the authorized person. Further the witness produced by the prosecution i.e. PW4 has not supported the case of prosecution in as much as she specifically stated that the certificate issued by Delhi Administration or MCD was not produced by the father of prosecutrix at the time of admission of prosecutrix in their school to support the claim that the date of birth of prosecutrix was actually 23.04.1994. Moreover, during his cross examination PW1 conceded that the prosecutrix was admitted in a private school namely Ushal Public School in class one but in the admission form Ex.PW4/A he did not disclose the factum of her studying in Usha Public School earlier and there is no explanation on the part of prosecution regarding withholding of the said information by the father of prosecutrix.
Further the question which now assumes significance in such scenario is whether the prosecutrix was actually taken by the accused persons. To fasten the criminal liability of kidnapping of the prosecutrix on accused persons and to secure their conviction for said charge, it was incumbent upon prosecution to establish beyond reasonable doubt that accused persons had taken or enticed prosecutrix out of keeping of her lawful guardian as alleged. No doubt PW1 Rajesh (father of prosecutrix) has testified on oath in the court that he suspected that his daughter had been kidnapped by the accused Harish with other accused persons but admittedly there is no eye witness of alleged crime. There is not even a single person who had seen the accused persons taking away the girl with them. Although, in her statement before Ld. MM for her statement u/s 164 Cr PC, she had stated that accused Harish was standing outside the gate of her school and he took (SC No.87/2011) (State Vs. Manju etc.) D.O.O. 27.05.2013 Page no.24 of pages27 her with him towards a car in which her parents were sitting and then she was taken in the car by the accused Harish and her parents had incited and taken her to Durga Puri Chowk in the car by saying that they had already spoken to her parents and they are agreed for their marriage. At Durga Puri Chowk parents of accused Harish deboarded and his sister and brother in law (Jija) came in the car. In the way, she was offered tea and thereafter, she lost her consciousness, to which she regained at Muradnagar. However, the statement of the prosecutrix Ex.PW3/B can not be safely believed upon as it can not be said that the same was recorded by her with her consent as it is a matter of record that after production of the prosecutrix before the court till the recording of her statement Ex.PW3/B, she was given/sent in the custody of her parents and in this scenario, the the possibility of her influencing/ tutoring by her parents, can not be denied. Further it assumes significance in the circumstances where the prosecutrix had herself testified in her said statement that the accused Harish was known to her for the last 2½ years and she was in love with him and they both wanted to marry each other. This fact coupled with the fact that the father of prosecutrix when on not finding her at school at the time when he went to pick her up from the school, he straightway alleged to the police that she was taken away by accused Harish; it clearly shows that the father of the prosecutrix was very well aware about the love affair of her daughter with the accused Hairsh.
Moreover, there are material contradictions in the statement of prosecutrix recorded before the court and the statement Ex.PW3/B as in her statement before Ld. MM for her statement u/s 164 Cr PC, she had stated that accused Harish was standing outside the gate of her school and he took her (SC No.87/2011) (State Vs. Manju etc.) D.O.O. 27.05.2013 Page no.25 of pages27 with him towards a car in which her parents were sitting and then she was taken in the car by the accused Harish and her parents had incited and taken her to Durga Puri Chowk in the car by saying that they had already spoken to her parents and they are agreed for their marriage and at Durga Puri Chowk parents of accused Harish deboarded and his sister and brother in law (Jija) came in the car and in the way, she was offered tea and thereafter, she lost her consciousness, to which she regained at Muradnagar; however, in the statement recorded before the court, she completely changed her version and stated that accused Harish was found standing outside the school premises near the school gate and he forcibly took her away in the car by by giving threats that he would kill her if he would raise alarm and thereafter, he took me at so many places (din bhar ghumata raha) and thereafter, took her to the corner of the street near to his house where Smt. Maya (Mother of accused Harish) and from there she was taken to her house where they got her school uniform changed and therefrom she was taken to Durga Puri Chowk where the accused Manju and Sanjeev also joined them but the accused Rishipal was not with them, rather he was giving instructions on phone to all accused persons for further course of action.
Further in her statement recorded before the court, she made material improvement while stating that she was taken to Rahispur at UP, where she was made to see some lawyer and was instructed to tell her year of birth as 1991 instead of 1994 and she was made to sign on some register, whereas, this fact was not found mentioned in her statement recorded U/s 164 Cr.P.C. Similarly, in her statement recorded before the Court she claimed that she was threatened by the accused Harish to kill in case she raises alarm, whereas, this fact also not found (SC No.87/2011) (State Vs. Manju etc.) D.O.O. 27.05.2013 Page no.26 of pages27 mentioned in her statement recorded U/s 164 Cr.P.C.
Further the factum of the recovery of prosecutrix from Muradnagar itself is also not free from doubt as admittedly, no information regarding arrival of Delhi Police Officials at Muradnagar or about the proposed raids for the recovery of the girl was given to the local police at Muradnagar nor any official from the local police was joined in the proceedings at that time. Even no public person from the locality was joined in the investigation at Muradnagar and no explanation regarding non joining of any public person has been put forwarded by the prosecution. Even the Site Plan Ex.PW14/D does not bear signatures of any public witness.
10. Thus in the matter under consideration, there is no indefeasible, cogent or trustworthy evidence on the record suggesting that victim was actually taken or enticed by any of the accused persons out of keeping/custody of lawful guardian nor there is any independent witness showing that she was actually recovered from the custody of the accused persons, so I am satisfied that prosecution has failed to bring home the charge of kidnapping of prosecutrix against accused persons as per law. For all these reasons, all the accused persons are accordingly hereby acquitted of the offence charged with. Their bail bonds and surety bonds stand cancelled and their respective sureties are discharged. Original documents, if any, of sureties be returned and endorsement, if any, on the documents be cancelled.
11. File be consigned to record room after completion of necessary formalities.
(Announced in the open (RAKESH KUMAR)
th
Court on 27 May, 2013) Addl. Sessions Judge/North East,
Karkardooma Courts, Delhi
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