Delhi District Court
1 State vs . Kamruddin on 29 January, 2007
1 State Vs. Kamruddin
IN THE COURT OF SHRI SAMEER BAJPAI, METROPOLITAN MAGISTRATE,
KARKARDOOMA COURTS, DELHI
FIR NO : 33/98
U/S. 363/368 IPC
P.S. Seema Puri
STATE VS. KAMRUDDIN
JUDGEMENT
1. Sl. No. of the case : 422/98
2. Name of complainant : Shaukat Ali s/o Abdulla r/o
E-235, New Seema Puri
Jhuggi no. E-46/75, Dilshad
Colony, Jain Mandir, Delhi.
3. Date of commission of offence : 17.01.1998
4. Name of accused, parentage and address : Kamruddin s/o Md. Salim r/o
Jhuggi no. E-46/75, Dilshad
Colony, Jain Mandir, Delhi.
5. Offence complained of or proved : 363 IPC
6. Plea of accused : Accused pleaded not guilty
7. Final order : Acquitted
8. Date of such order : 29.01.2007
BRIEF REASONS FOR THE DECISION OF THE CASE
1. The case of the prosecution is that on 16.01.1998 ASI Rajeshwar was posted as H.C at Old Delhi Railway Station, and in the evening was patrolling on platform no. 1A. ASI Rajeshwar saw the accused who was sitting along with one girl aged about 5/6 years, and the girl was weeping. ASI Rajeshwar asked the accused why she was weeping but the accused could not give satisfactory answer. On interrogation, the name of the accused was revealed as Karimuddin, and he confessed that he had kidnapped the said girl from New Seema Puri.
2. After supplying of documents to the accused a charge u/s 363 IPC was framed to which accused pleaded not guilty and claimed trial.
3. To prove its case prosecution has examined as many as nine witnesses.
After conclusion of prosecution evidence, statement of accused persons u/s 313 Cr.P.C has been recorded in which they pleaded their innocence however has not led any evidence in their defence.
4. PW1 Shaukat Ali deposed that on 16.01.1998 his daughter Shehnaz aged about six years went to see picture on VCR in the neighborhood but she did not returned back to the house. PW1 further deposed that he searched hos daughter and then made a complaint to the police vide the Ex.PW1/A. On the same night at 1.30 am, police officials came at his residence along with his daughter and the accused Kamruddin. Police told that the accused Kamruddin has kidnapped his daughter. He further deposed that police told him that his daughter started weeping at Railway station, and such public persons and police reached there and apprehended the accused.
5. PW2 is Tittoo deposed that he used to run VCR, and children used to come and see the picture, and on 16.01.1998 also children came there to see the picture, but he did not know the name of the children.
6. PW3 ASI Rajeshwar deposed that on 16.01.1998, he was posted as H.C. At old Delhi Railway Station, and on that day, at about evening time he was patrolling at platform no. 1A, near T-stall and saw that the accused was sitting along with one girl aged about 5-6 years, and the girl was weeping at that time. PW3 further deposed that when he asked the accused as to why she was weeping, 3 State Vs. Kamruddin he could not give satisfactory answer . The name of the accused was revealed as Kamruddin and on interrogation he confessed that he kidnapped the said girl. He further deposed that he produced the accused as well as the daughter to the SHO Old Delhi Railway Stastion, and the SHO deputed one SI P.S. Rana to produce the girl and the accused to SHO Seema Puri.
7. PW4 Kanwaljeet Arora, Ld. MM proved the statement of the girl u/s 164 Cr.P.C as ex.PW4/B, the application of the IO as Ex.PW4/A, and the application for supply of the application as Ex.PW4/C.
8. PW5 deposed that on 16.01.1998, he was posted at P.S. Seema Puri as D.O, and on that day, at about 12.20 am, he received a rukka from SI Manoj Kumar personally and on the basis of which FIR no. 33/98 was recorded. The FIR has been proved as EX. PW5/A.
9. PW6 Sh. Sushil Kumar record clerk GTB proved the MLC of the girl as Ex.PW6/A.
10. PW7 SI Padam Singh Rana deposed that on 16.01.1998, he was posted as SI at P.S R.M.D. ( Old Delhi Railway Station), and on that day, at about 10.30 pm, HC Rajeshwar produced the accused Kamruddin along with a girl Shehnaz at about 6 years. The accused was interrogated and he disclosed that he had kidnapped the girl from P.S. Seema Puri with bad intention. He further deposed that he along with the accused went to P.S. Seema Puri to produce both of them before the IO SI Manoj Kumar who arrested the accused. The personal search memo has been proved by this witness as PW7/A. Memo vide which the girl was taken into 4 State Vs. Kamruddin possession is Ex.PW7/B. PW8 Guru Charan Singh, ACP PCR deposed that on 16.01.1998 he was posted as SHO ( R.M.Delhi) and on that HC Rajeshwar produced before him a minor girl aged 6 years Shehnaz and a boy aged about 20/23 years . PW9 SI Manoj Kumar Sharma deposed that on 17.01.1998, while he was posted as SI P.S Seema Puri at about 12.00 night the complainant Shaukat Ali made a complaint regarding his missing daughter. His statement was recorded and a rukka Ex.PW9/A was prepared and handed over to D.O for registration of the case. He further deposed that a site plan Ex.PW9/B was prepared at the instance of the complainant. Ct. Dharmender Came at the spot and handed over copy of FIR and rukka. The accused could not be traced out at that time. He along with Ct. Dharmender Returned back at P.S at about 1.30 to 2.00 am. SI P.S. Rana and HC Rajeshwar from PS. Old Delhi Railway Station came in the P.S. Seema Puri and produced the accused Kamruddin and the kidnapped girl Shehnaz. PW9 further deposed that he conducted the personal search of the accused , and recorded the statement of PWs. The medical examination of the accused and girl was got conducted. The seizure memo of the Sample of semen of the accused is Ex.PW9/C. Further on his request the statement of the girl was recorded by the Ld. MM u/s 164 Cr.P.C.
11. I have gone through the record, and gave thoughtful consideration to the facts as well as arguments made by the State, and the Defence Counsel.
12. Ld. APP argued that the prosecutrix was last seen with the accused and from the facts there is no doubt that the accused Kidnapped the girl Shehnaz.
13. PW3 ASI Rajeshwar is the only important witness in the present case 5 State Vs. Kamruddin who deposed that "he saw that the accused present in the court today was sitting along with one girl ....................."
Section 361 IPC define kidnapping as whoever takes and entices any minor under ( Sixteen ) years of age if female, or 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.
In the present case, neither the complainant i.e the father of the girl nor any other person had seen the accused taking or enticing the girl, and consequently no evidence has come on record in this regard. If the girl had been recovered from the possession or custody of the accused, the case of the prosecution would have been different. But in the present case the deposition of PW3 merely is that he saw the accused siting along with one girl. The accused was neither holding the girl, nor carrying the girl. The accused was further not with the girl at any place which was in his exclusive possession. In my opinion, as per the definition u/s 363 IPC, the offence is not complete , though the other facts have been very well connected and make a perfect sequence, but only the fact mentioned above raises doubt and entitle the accused for giving him benefit of doubt.
14. It is further observed that the spot was crowded place i.e Railway platform, but no public witness has been joined in the investigation by the police.
In the State of Rajasthan Vs. Teja Singh 2001 (II) AD (SC) 125, Hon'ble supreme Court held:
"The failure of the prosecution to examine independent witnesses though 6 State Vs. Kamruddin available is fatal for their case".
In the case title State of Punjab Vs. Gurdyal Singh 1992 (1) Rcr (DB) 646, Roop chand Vs. state of Haryana 1989 (2) Rcr 504 and State of Punjab Vs. Sukhdev Singh 1992 (3) Rcr 311, it was held by the Hon'ble courts that :
"Where the IO has failed to even note down the names and address of the persons, who have refused to join as public witnesses, couple with the fact that no action was taken against them, the case is rendered doubtful."
15. In view of above discussion, I am of the considered view that prosecution has failed to prove its case beyond reasonable doubt against the accused. Accused is hereby acquitted of charge leveled against him. His bail bond canceled. Surety discharged. File be consigned to Record Room.
Announced and Dictated in Open court on 29.01.2007 ( SAMEER BAJPAI ) METROPOLITAN MAGISTRATE KAKRDOOMA COURTS, DELHI