Delhi District Court
State vs Imran on 20 October, 2022
IN THE COURT OF SH. PAWAN KUMAR MATTO
ADDITIONAL SESSIONS JUDGE (SPECIAL JUDGE NDPS) NORTH
EAST DISTRICT KARKARDOOMA COURTS DELHI
CNR No. DLNE01-009982-2016
SC No: 340/2017
State Versus Imran
S/o Shafiq
R/o H. No. A-47, Gali No. 2,
1st Pusta, Usmanpur, Delhi.
Permanent Address:
Village Majgava, PS Visaratganj,
District Bareilly, U.P.
FIR No. : 485/2015
Police Station : New Usman Pur
U/sec. : 363/366 of IPC
Case received in the court on : 26.09.2015
Date of reserving judgment : 10.10.2022
Date of judgment : 20.10.2022
JUDGMENT:
1. Brief facts of the case are that, in the case in hand, the FIR has been registered on the statement of the father of the prosecutrix 'TKS' (presumed name of the father of prosecutrix), wherein, he has stated that he drives the taxi and his daughter 'RS' (presumed name of the prosecutrix aged about 17 years and 9 months)had gone from the home on dated 27.04.2015 SC No. 340/2017 State Vs. Imran Page 1 of 47 at about 10:00 PM after taking a black bag of fast-track that too without giving any information and she did not return home. It is also stated that the prosecutrix 'RS' had also taken a Chinies mobile phone, which was having two SIMs therein. He has further stated that he had tried to search the prosecutrix 'RS', but, he could not find her and on dated 30.04.2015, he had given the statement to the police. He has also stated that he has suspicion that some unknown person has induced and enticed away to his daughter and prayed for taking legal action against the said unknown person. Accordingly, on such statement of the complainant, an FIR was registered U/sec.363 of IPC and it was handed over to the Sub Inspector for investigating the matter. During the investigation, Sub Inspector had uploaded the information regarding the kidnapping of the girl i.e. the prosecutrix 'RS' on information zipnet and WT message was also flashed on the all India basis and also sent the missing information to the missing squad. It is further stated that secret informers were also deployed and on dated 22.05.2015, an information was received that the said kidnapped girl 'RS' was seen in Visarat Ganj, Bareilly. Accordingly, the said Sub Inspector had sent the HC Sudhir and women Ct. Rajni alongwith the parents of the prosecutrix 'RS' at Bareilly. It is further stated that on dated 23.05.2015, HC Sudhir and W/Ct. Rajni alongwith the parents of the prosecutrix 'RS' had arrived in the police station and SC No. 340/2017 State Vs. Imran Page 2 of 47 prosecutrix 'RS' was also produced in the custody of W/Ct. Shanta Rawat, the prosecutrix 'RS' alongwith her parents was sent to the hospital for medical examination and she was medically examined and her MLC was also obtained. It is also stated that the prosecutrix 'RS' had refused for her internal medical examination before the senior gynecologist and the IO had recorded the statement of the prosecutrix 'RS', who had refused to go to her house, therefore, W/Ct. Shanta Rawat had admitted her in Sanskar Balika Ashram, Dilshad Garden, Delhi. It is further stated that on dated 26.05.2015, the statement of prosecutrix 'RS' was recorded U/sec. 164 of Cr.P.C by the court of Ld. Metropolitan Magistrate Ms. Prabhdeep Kaur and the IO had obtained the copy thereof, wherein, the prosecutrix 'RS' had told that on dated 27.04.2015, she had voluntarily gone with the accused Imran and solemnized NIKAH. It is also stated that this prosecutrix 'RS' did not produce any document in this regard and she was produced before the CWC, where, she had again refused to go to her home and the CWC was pleased to pass an order for keeping the prosecutrix 'RS' in the Sanskar Balika Ashram.
2. It is also stated in the report u/s. 173 of Cr.P.C that on dated 10.07.2015, the accused Imran alongwith the prosecutrix 'RS' had arrived in the police station and accused was made to join the investigation and he was arrested and intimation regarding his arrest was given to his father. It is SC No. 340/2017 State Vs. Imran Page 3 of 47 further stated that this accused had made disclosure statement and he was produced in the court and he was remanded in judicial custody and the prosecutrix 'RS' had again refused to go to her home and after her medical examination, she was admitted in girls shelter home.
3. It is also stated that on dated 16.07.2015, the prosecutrix 'RS' had shown her desire to go to the house of her parents and she was produced in the court and as per the wish of the prosecutrix 'RS', she was handed over to her parents.
4. It is also stated that HC Sudhir had disclosed in his statement that the prosecutrix 'RS' was recovered from village Majgava, Visaratganj, District Bareilly, which is the permanent address of the accused Imran. It is also stated that since, this accused had induced and enticed away to a minor girl and solemnized NIKAH and since the consent of the minor girl was invalid, so, this accused Imran had committed an offence punishable U/sec. 363 and 366 of IPC, therefore, on the completion of the investigation, the chargesheet was filed against him in the above said two sections of IPC and after supplying the copy of the chargesheet, the case was committed to the court of the Additional Sessions Judge (SFTC), Karkardooma Courts, Delhi and vide order dated 22.12.2015,the bail was granted to this accused. Since, sexual offences were not committed in the case in hand, so, the Presiding SC No. 340/2017 State Vs. Imran Page 4 of 47 Officer of the said court vide his order dated 08.11.2017 was pleased to send the file to the court of the ld. District & Sessions Judge, North-East, Karkardooma Courts and the matter was assigned to the court of Sh. Lalit Kumar, the Ld. Addl. Sessions Judge, North-East, Karkardooma Courts, Delhi and thereafter, it was transferred to the court of ld. Predecessor of this court.
5. Vide order dated 18.12.2015, on finding of the prima-facie case, the charges U/sec. 363 and 366 of IPC were framed against the accused by the court of Ld. Additional Sessions Judge (SFTC), to which, the accused pleaded not guilty and claimed trial. Accordingly, the accused was put on trial and the matter was fixed for the evidence of the prosecution.
6. In order to prove its case, the prosecution has examined thirteen (13) witnesses and on completion of the evidence of the prosecution, the statement of the accused U/sec. 313 of Cr. P.C. was recorded. The accused did not examine any witness in his defence.
7. I have heard the Ld. Counsels for the parties.
8. Ld. Additional Public Prosecutor for the State has submitted that submitted that accused had kidnapped the prosecutrix on dated 27.04.2015 and at the time of kidnapping of the prosecutrix, her age was 17 years, 8 months and 19 days as per the record proved by the school authority SC No. 340/2017 State Vs. Imran Page 5 of 47 her date of birth was 08.07.1997 and she was kidnapped away by the accused on dated 27.04.2015. He has further submitted that the father of the prosecutrix had given the information to the Police on dated 30.04.2015 regarding kidnapping of the prosecutrix by some unknown person and on receiving of the information on dated 22.05.2015 that the victim was available in village Majgava, Visaratganj, Bareilly, U.P., the mother, father of the prosecutrix accompanied the police officials namely SI Sudhir and W/Ct. Rajni and the prosecutrix was recovered from the house of the accused situated in Village Majgava,Visaratganj, Bareilly, U.P. He has further submitted that prosecutrix was brought at Delhi and further submitted that the accused was arrested and chargesheet U/sec. 363 and 366 of IPC was filed against him and accordingly, charges U/sec. 363 and 366 of IPC were framed against him to which he pleaded not guilty and claimed trial.
9. He has further submitted that since the prosecutrix has been examined as PW-2 whose date of birth has been proved by PW-8, in accordance of which, she was minor on the date of kidnapping and further submitted that mother of prosecutrix has been examined as PW-4 and father of the prosecutrix has been examined as PW-7 and SI Sudhir has been examined as PW-10, who has proved that victim was recovered from the SC No. 340/2017 State Vs. Imran Page 6 of 47 house of accused situated at village Majgava, Visaratganj, Bareilley, UP and submitted that since the prosecution has successfully proved its case beyond reasonable doubts that this accused had kidnapped to the minor prosecutrix with the intention to marry, so, accused is liable to be convicted U/sec. 363 and 366 of IPC.
10. On the other hand, the counsel for the accused has submitted that prosecutrix was a major girl, but, as per the record of the school, she was minor. He has also submitted that since as per the record of the school, the age of the prosecutrix on dated 27.04.2015 was 17 years, 8 months and 19 days and thus, she was at the verge of attaining majority. He has further submitted that prosecutrix has alleged in her statement recorded in the court that the accused had administered her cold drink and on consuming thereof, she became unconscious and prosecution has failed to prove on record that the accused had administered any stupefying substance to the prosecutrix or that she became unconscious.
11. Ld. Counsel for the accused has further submitted that the prosecution has alleged that the prosecutrix was kidnapped away and she was taken to a village Majgava, Visaratganj, Bareilly, UP and she was recovered from the house of the accused allegedly situated in the area of village Majgava, Visaratganj, Bareilly, UP, but, no cogent evidence has been SC No. 340/2017 State Vs. Imran Page 7 of 47 brought on the record as to how the prosecutrix was taken at a distant place and submitted that since the prosecutrix is at the age of discretion, she could not be kidnapped away by the accused.
12. Ld. Counsel for the accused has further submitted that the prosecution has alleged that the prosecutrix was recovered from a house situated in the village Majhgava, Visaratganj, Bareilly, UP, which belongs to the accused. But, the prosecution has failed to bring on record any cogent evidence to prove on record that the house from which, the prosecutrix is alleged to have been recovered, belongs to the accused and further submitted that the accused has no house in the village Majhgava, Visaratganj, Bareilly, UP, nor the prosecutrix was recovered from the house of the accused. He has also submitted that if the prosecutrix was recovered from the house of accused at village Majhgava, Visratganj, Bareilley, UP, the statement of Gram Pradhan or Sarpanch could be recorded by the Police and some documentary proof could be placed on record by the Police to prove that the house, from where, the prosecutrix was recovered belongs to the accused, but, no such statement of any Grampradhan or Sarpanch was recorded by the Police nor the police has brought on record any cogent documentary proof to prove that the accused has any house in the area of village Majgava or that the prosecutrix was recovered from the house of accused. He has further SC No. 340/2017 State Vs. Imran Page 8 of 47 submitted that prosecutrix could be medically examined at Bareilley, from where, she is alleged to have been recovered, but, she was not medically examined at there and submitted that testimony of the prosecutrix is self contradictory, which cannot be relied upon. He has further submitted that the mother of the prosecutrix has been examined as PW-4 and during her cross-examination, she has admitted that this prosecutrix was having Aadhar card and as per the Aadhar card, she was major on the date of missing and submitted that the testimony of this PW-4 cannot be ignored and since, the prosecutrix was a major girl and this fact is well admitted by her mother in her cross-examination, so, the story of prosecution becomes doubtful and submitted that the benefit of doubts are liable to be given to the accused and thus submitted that the prosecution has failed to prove on record beyond reasonable doubt that the prosecutrix was kidnapped by the accused to marry with her, so, he may be acquitted.
13. I have given thoughtful consideration to the submissions made by the ld. Counsels for the parties and perused the record.
14. The perusal of the record reveals that the prosecution has claimed that the prosecutrix 'RS' is a minor girl and she was kidnapped away by the accused on dated 27.04.2015 with intention to compel her to marry with him.
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15. In order to prove its case, the prosecution has examined thirteen (13) witnesses.
16. Constable Kuldeep has been examined as PW-1, who has testified that on 10.07.2015, when he was posted at police station New Usman Pur, accused Imran was present in the police station and he was arrested by SI Chhail Bihari Sharma, vide arrest memo Ex.PW1/A, bearing his signature at point A and the personal search of accused Imran was conducted, vide personal search memo Ex.PW1/B, bearing his signature at point A. He has further testified that accused Imran made disclosure statement, which is Ex.PW1/C, bearing his signature at point A. Accused Imran was correctly identified by PW-1 in the court.
17. In his cross-examination, PW-1 has testified that accused Imran had signed his arrest memo, personal search memo and disclosure statement in his presence and in pursuance of the disclosure statement of the accused, nothing was recovered from the possession of the accused in his presence. He has denied that he has deposed falsely.
18. The prosecutrix 'RS' (presumed name of the prosecutrix)has been examined as PW-2, who has testified that her date of birth was 08.07.1997 and in the year 2015, she alongwith her parents was residing at the address as mentioned in her statement. She has further testified that she SC No. 340/2017 State Vs. Imran Page 10 of 47 knew accused Imran since March 2015 and accused used to follow her and later on, friendship developed between her and the accused. She had correctly identified accused Imran in the court.
19. PW-2 has further testified that on 27.04.2015 at about 7:00-7:30 PM, accused Imran made a phone call to her and asked her to come to a restaurant (which was situated near her school) alongwith her 10th class marksheet, Aadhar card, bank passbook and other documents. She has also testified that at about 8:00 PM, she reached there alongwith the abovesaid documents and met the accused and that accused Imran served her cold drink and after consuming cold drink, she lost her senses and after regaining her senses, she found herself with the accused at a village. She did not know the name of the said village. The mother, father, brother and sisters of the accused were also present at the village. PW-2 has further testified that the accused had threatened of killing her family members and to kidnap her sister. She has also testified that she was told by the accused that her family members would kill her and would pressurize her to marry him. Prosecutrix has further testified that thereafter, she was taken to a STD Booth by the mother of the accused and the mother of the accused made her (PW-2) to speak to her parents on telephone and under pressure of the accused and his mother, PW-2 told her parents that she had got married with the accused. SC No. 340/2017 State Vs. Imran Page 11 of 47 She has further testified that the family members of the accused told her that her parents had filed a complaint in the police station regarding her missing. She has further testified that accused kept her at his house for about fifteen days, without her consent, with his family members, but, he was residing at some other place during that period and that accused never raped her and she has also testified that this accused did not make physical relations with her at any time.
20. The prosecutrix has further testified that after fifteen days, her mother and father alongwith the police officials reached at the house of the accused and they brought her to police station, New Usman Pur and she was taken to Jag Pravesh Chandra Hospital for her medical examination, where, she was medically examined, vide MLC Ex.PW2/A, bearing her signature at point A. The photocopy of her 10th class marksheet is Ex.PW2/B, bearing her signature at point A.
21. The prosecutrix has further testified that on 26.05.2015, her statement u/s. 164 of Cr.P.C was recorded by the ld. Metropolitan Magistrate and that she made that statement under pressure of the accused and the contents of the same were not correct. The carbon copy of her statement u/s. 164 of Cr.P.C is Ex.PW2/C.
22. The prosecutrix was cross-examined by the ld. Counsel for the SC No. 340/2017 State Vs. Imran Page 12 of 47 accused and during her cross-examination, the prosecutrix had admitted it to be correct that she had stated in her statement u/s. 164 of CrPC that she was in love with the accused. She voluntarily stated that she made that statement u/s. 164 of CrPC under the pressure of the accused. The prosecutrix has further testified that the accused was not present, when her statement u/s. 164 of CrPC was recorded by the ld. Metropolitan Magistrate. She has also testified that her parents and the police officials had brought her to Delhi alongwith the accused. The prosecutrix has also admitted in her cross- examination that after apprehension, the accused was sent to jail and she was sent to Sanskar Ashram for one or two days. The prosecutrix has denied the suggestion given by the ld. Counsel for the accused, during cross- examination that she was sent to the Sanskar Ashram by the police officials, as her parents were not ready to take her home at that time. She has admitted that after coming to Delhi from the village of the accused at District Bareilly, Uttar Pradesh, she was not willing and ready to go to her house, with her parents and thus, she was sent to Sanskar Ashram and also admitted that she also became scared of beating by her father and mother at that time. The prosecutrix has also admitted that she had stated in her statement u/s. 164 of CrPC that her brother Rahul used to say that she was not his real sister and that she was his cousin and that he was having wrong relations (galat SC No. 340/2017 State Vs. Imran Page 13 of 47 sambandh) with her and due to that reason, she had gone with the accused voluntarily of her own free will without any enticement or force on the part of the accused. The prosecutrix has also admitted that she had stated in her statement u/s. 164 of CrPC that due to the behavior of her brother towards her, the other boys used to make fun of her and she did not go to the school for six months. She has further admitted it to be correct that her brother Rahul scolded her at the police station, after her coming to Delhi with her parents, the police officials and the accused. The prosecutrix has denied the suggestion given by the ld. Counsel for the accused, during cross- examination that she had stated to the investigating officer that she did not want to have any connection with her father or that she wanted to get the name of her father deleted in her educational documents. The prosecutrix has further testified that she had not stated to the ld. Metropolitan Magistrate that she had made her statement under pressure of the accused and that she had also not stated to the investigating officer that she had made statements under the pressure of the accused and that she had not stated to the doctor during her medical examination that she was afraid of the accused. The prosecutrix has further testified in her cross-examination that she never got married with the accused and that she had never handed over her any original document or the photocopy of the same to the police officials. The SC No. 340/2017 State Vs. Imran Page 14 of 47 prosecutrix has voluntarily stated that her original educational documents were with the accused. She has testified that she did not know who had handed over the copy of her marksheet of 10 th class (Ex.PW2/B) to the police officials and that her original marksheet of 10th class and date of birth certificate were with the accused.
23. The prosecutrix has further testified that she had not stated that facts of this case to the doctor at the time of her medical examination. The prosecutrix has admitted during her cross-examination that she had stated in the alleged history of case during her medical examination that her mother used some abusive language for her and due to which, she left her house on 27.04.2015 at about 7:00 PM. She also admitted that she had also stated in her MLC Ex.PW2/A that she had gone to Khurja on 27.04.2015 at the house of her Bhabhi and stayed there upto 20.05.2015 and thereafter, she went to Bareilly on 20.05.2015 for friend's wedding and that her Bhabhi's uncle saw her in the wedding and informed her father, who brought her back to Delhi. She has voluntarily stated that she made the above statement as mentioned in her MLC, at the instance of the police officials. She has further admitted in her cross-examination that her mother and father were present in the hospital at the time of her medical examination and also admitted that her MLC was bearing the signature of her father.
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24. The prosecutrix has also deposed that she does not know by which vehicle, she was taken to Bareilly by the accused from the restaurant on 27.04.2015, as she was unconscious and that she was having her mobile phone on 27.04.2015 and that she had taken her mobile phone with her and that the SIM card of her mobile phone was given to her by the accused and that her mobile phone was purchased by her father for playing games and that her father did not give any SIM card to her and that the mobile phone with the SIM was not handed over to the police officials by her, as the same was with the accused and she gave the same to him. She has further testified that she had not shown the place of occurrence i.e. restaurant to the police officials and that the accused had brought the bottle of cold drink, but, she did not know from where, he had purchased the same. She had admitted that at that time, she had got married with some other person and she had one child out of that wedlock. The prosecutrix has denied the suggestion given by the ld. Counsel for the accused, during cross-examination that she was deposing falsely to save her matrimonial life. She had admitted that she had not stated to the police officials and to the ld. Judge at the time of her statement u/s. 164 of CrPC that the accused had administered some intoxicating substance to her in the cold drink. She further testified that the accused came to meet her on his motorcycle on 27.04.2015 and admitted SC No. 340/2017 State Vs. Imran Page 16 of 47 that she had love affair with the accused and that she does not want that the accused be punished. She denied the suggestion given by the ld. Counsel for the accused, during cross-examination that she had gone with the accused with her free will.
25. ASI Mahender Pal has been examined as PW-3 who has testified that on 30.04.2015, he was on duty at the police station as the Duty Officer from 4:00 PM to 12:00 midnight and at about 9:30 PM, rukka Ex.PW3/A, prepared by SI Dharmender, was presented before him for registration of the FIR and he has recorded DD No. 36-A for registration of the present case, after making endorsement Ex.PW3/B on the rukka and thereafter, he delivered the said rukka to computer operator on duty for typing the FIR. He has proved the rukka and testified that he had registered the FIR U/sec. 363 of IPC and concluded DD No. 36-A and proved the copy of FIR Ex.PW3/C and deposed that the investigation of the case was assigned to SI Chhail Bihari Sharma and he had handed over the rukka and copy of FIR of the present case to the IO. He has also proved the certificate U/sec. 65-B of Indian Evidence Act was issued by the SHO Inspector Mahavir Singh in this case, which is Ex.PW3/D.
26. He was cross-examined by ld. Counsel for the accused. In his cross-examination, he has denied that the FIR is ante-dated and ante-timed SC No. 340/2017 State Vs. Imran Page 17 of 47 or that he was deposing falsely being a police official.
27. Smt. 'VS' (presumed name of the mother of the prosecutrix) has been examined as PW-4 who has testified that she has two daughters and two sons and the prosescutrix is her second child and at the time of missing, she was 17 years and 7-8 months old and in those days, her daughter was studying in 12th standard. She has also testified that on dated 27.04.2015 at about 10:00 AM, her daughter/victim had left the house in her presence to go to her school/Centre at Jafrabad for appearing in examination of 12 th class and on that day, she did not return to the house. She has further testified that they made search of her daughter here and there, but, no clue was found about her missing daughter and her husband lodged a report after 2-3 days at the police station New Usmanpur, where, his statement Ex.PW4/A was recorded and copy of FIR Ex.PW3/C, which was delivered to them. She has further testified that police visited her house and she had given photocopy of birth certificate of the victim, which is Mark PW4/1 and one photograph of the victim. She has further testified that after about 15 days, they had received a phone call of her daughter/victim, who told them that she was in the area of Visarath Ganj, District Bareilly, U.P. and she had also told that she was kept there by one Imran, but, she did not know the way to return her house. PW-4 has further testified that her husband approached to the police SC No. 340/2017 State Vs. Imran Page 18 of 47 of Police Station New Usmanpur and one police officer namely Sudhir and other police officers took her to the place, where, they found the victim confined in a room. PW-4 has identified her daughter and the police had recovered her from that room and at that time, no other person was present and her daughter was alone. The police officers prepared some documents and also recorded statement of the victim and the police also interrogated to the father of Imran, namely, Shafiq.
28. She has further testified that police had interrogated Shafiq and Imran. She had correctly identified to accused Imran and deposed that this accused was brought at Delhi, after reporting the matter at the concerned police station and he was arrested in the present case and he was sent in judicial custody. She has further testified that the police officials got medically examined her daughter in Delhi, vide MLC Ex.PW2/A dated 23.05.2015 and her daughter had refused for internal examination. She has also deposed that no wrong act/rape was committed with her daughter/victim and the police got recorded the statement of her daughter through Ld. Metropolitan Magistrate on dated 26.05.2015 and thereafter, they had taken her daughter at home.
29. This witness has also deposed that now a days, her daughter is residing in her matrimonial home alongwith her husband 'RS' (presumed SC No. 340/2017 State Vs. Imran Page 19 of 47 name) and she has one son aged about one year. She has further deposed that her daughter told her that accused Imran had taken her at Visarath Ganj, Bareilly, U.P. and she was allured by the accused for taking her to Visharath from Jafrabad, where she had gone to appear in her examination of 12 th class. She has further deposed that the original educational certificate from 9th Standards to 12th standard, original Aadhar Card, Original Bank Passbook and original Laadli Form are in possession of the accused, as told to her by the victim.
30. She was cross-examined by Ld. Counsel for the accused and during her cross-examination, she has denied that her daughter was not recovered from Visarath Ganj(Town), District Bareilly. She has also deposed that her statement was recorded by the police officials after about two days from the recovery of her daughter. She has admitted it to be correct that she had stated in her statement u/s. 161 of CrPC that her daughter was recovered from village Majhgawa. She has also testified that her daughter did not tell her regarding any forceful sexual abuse by the accused, even she did not tell anything about abduction and kidnapping. She has denied that her daughter had visited the police station of her own. She has also deposed that the prosecutrix was born in Machhliwala Hospital at Delhi. She has also admitted it to be correct that her daughter was alone on the way in village SC No. 340/2017 State Vs. Imran Page 20 of 47 Majgawa, PS Bisaratganj, Bareilly, U.P. on dated 23.05.2015 and the police officials had produced the victim before concerned court at Bareilly and then she was brought to Delhi. She has admitted it to be correct that the prosecutrix was having Aadhar Card at that time and as per Aadhar Card, she was major on the date of missing. She has denied that she had given wrong date of birth of the victim to the Registrar of Birth, on the basis of which, the birth certificate was issued. She has also denied that wrong date of birth of the prosecutrix is reflected in her record of school. She has denied that she has deposed falsely.
31. Ms. Shanta Rawat has been examined as PW-5, who has deposed that on dated 23.05.2015, she was posted at police station New Usmanpur and on that day, IO/SI C. B. Sharma had interrogated to the minor victim 'RS' in her presence and recorded her statement u/s. 161 of CrPC and she was medically examined, vide MLC Ex.PW2/A and she had left the victim in Sanskar Ashram, Dilshad Garden, as, directed by the IO and her statement was also recorded.
32. PW-5 was cross-examined by the ld. Counsel for the accused and during her cross-examination, she had denied that victim was major at the time of incident or that the victim had told her age to the Investigating Officer in her presence that she was more than 18 years or that she has SC No. 340/2017 State Vs. Imran Page 21 of 47 deposed falsely.
33. Ms. Rajni, W/HC, has been examined as PW-6 who has testified that on dated 22.05.2015, she was posted at police station New Usmanpur and on that day, she had joined the investigation of the present case with HC Sudhir and both of them had gone to village Bisarath Ganj, in search of the minor girl 'RS' and at that time, the mother and father of the prosecutrix were also with them and they had arrived in village Bisarath Ganj, District Bareilly, U.P, as instructed by parents of the victim, in search of the victim and the victim alongwith the accused met them in village Bisarath Ganj and IO had overpowered them and the custody of the victim was given to her (PW-6). She has also deposed that accused Imran remained in the custody of HC Sudhir and victim and accused were brought at the police station on dated 23.05.2015 and victim was interrogated by the IO on dated 23.05.2015 and thereafter, the custody of the victim remained with the police officials.
34. She has also deposed that on 26.05.2015, she had brought the victim from Ashram and she (victim) was produced before the concerned court, where, the statement u/s. 161 of CrCP of witness was recorded and she had left the victim at the aforesaid Ashram.
35. She was cross-examined by the ld. Counsel for the accused and SC No. 340/2017 State Vs. Imran Page 22 of 47 during her cross-examination, she has deposed that she had told to the IO that the victim was with accused Imran and he was overpowered by HC Sudhir and she was confronted with her statement Ex.PW6/DA, wherein it was not so recorded. She has also stated that she had told to the IO in her statement that victim was interrogated in her presence and on confrontation of statement Ex.PW6/DA, it was not so recorded. She has denied that when the victim was brought for recording statement u/s. 161 of CrPC, she was tutored by her parents, on the way. She has also denied that the victim had given her statement before the Ld. Metropolitan Magistrate, as per guidance of her parents, who met her on the way, when she was in her custody. She has denied that she had not joined the investigation of the present case or that she had not gone outstation with HC Sudhir or that the victim was not traced in village Bisarath Ganj or that she has deposed falsely at the instance of HC Sudhir and other police officials.
36. Father of the victim 'TKS' (presumed name), has been examined as PW-7 who has despoed that he is driver by profession and he has four children including the victim and on dated 27.04.2015, his daughter/victim was studying in 12th standard and her date of birth is 08.07.97 and on that date i.e. on dated 27.04.2015 at about 10:00 PM, his daughter/victim aged about 17 years and 9 months was found missing from SC No. 340/2017 State Vs. Imran Page 23 of 47 his house and this witness and his family made her search. He has also deposed that on dated 30.04.2015, he had visited the police station and lodged the report saying that some unknown person had taken away his aforesaid daughter and the police had recorded his statement Ex.PW4/A at about 8:00/9:00 PM on dated 30.04.2015. He had identified his signature thereon at point A. He has further deposed that the police had lodged the FIR u/s. 363 of IPC on the basis of his statement recorded in the police station at about 9:30 PM. He has also deposed that the copy thereof is Ex.PW3/C delivered to him by the police in the police station.
37. He has further testified that police had visited his house on the same day and they had enquired from his neighbours in connection with the missing of his daughter and during the course of investigation, he had delivered a copy of Secondary School Examination Certificate of the victim (Ex.PW2/B), wherein the date of birth of his daughter is mentioned as 08.07.97. He has further testified that he had delivered the photocopy of birth certificate of the victim copy thereof is marked PW4/1 and he had received a phone call of his daughter on his phone, who had told him that she was taken away by Imran and he is in the village Majgawa, PS Bisarath Ganj, Bareilly, U.P. He has further deposed that he alongwith his wife, HC Sudhir and W/Ct. Rajni had gone to Bareilly on dated 23.05.2015 and they SC No. 340/2017 State Vs. Imran Page 24 of 47 found missing girl on the way near the house of Imran and he had pointed out towards the victim and she was brought to Delhi and after producing her before the concerned court at Bareilly, it was told to them by his daughter that Imran ran away from the way.
38. He has further deposed that on 26.05.2015, victim was produced before the ld. Metropolitan Magistrate at Delhi, where, her statement was recorded and it was told to him by his daughter that accused Imran had taken away at his native place, but, there were no physical relations between them. He has further deposed that he had taken his daughter back to his house from the concerned court and since then, she started residing with him and now, the victim has got married with one RS (presumed name) and has one male issue aged about 2 years and she is living happily with her family and she has no concern with the accused Imran. He has also deposed that he is not aware what was the purpose of accused Imran to take away his daughter.
39. This witness was also cross-examined by the ld. APP for the State, as, he had resiled from his statement given to the police. In his cross- examination done by the ld. APP for State, he has admitted that Police had recorded his statement in this case on dated 30.04.2015 and his supplementary statement was recorded on dated 23.05.2015. He has denied SC No. 340/2017 State Vs. Imran Page 25 of 47 that his daughter was taken away by the accused Imran to solemnize the marriage or that his daughter had told him that accused had compelled to marry or that he has deposed falsely in order to save the matrimonial life of his daughter.
40. He was also cross-examined by the ld. Counsel for the accused. During his cross-examination, when the attention of this witness was drawn towards the photocopy of birth certificate Mark PW4/1, this witness has deposed that the name of child is not mentioned therein and he has denied the suggestion that the birth certificate Mark PW4/1 does not have any concern with the victim. When the attention of witness was drawn towards the photocopy of Aadhar Card of the victim, he has deposed that on the day of missing, the aforesaid Aadhar Card (Ex.PW7/DA) was in their possession, which was got issued from the concerned authority and he has admitted that he has knowledge that the Aadhar Card is issued to the major persons only and also admitted that as per the Aadhar Card, the victim was major on the day of missing. He has denied the suggestion that the birth certificate (Mark PW4/1) was got issued on 12.08.2008 or that he had given wrong date of birth of victim to Birth Registrar, on the basis of which birth certificate was issued. He has also denied the suggestion that he had also given wrong date of birth in the school of the victim or that for this reason, this wrong date of SC No. 340/2017 State Vs. Imran Page 26 of 47 birth is reflected in her school record. He has admitted that on the day of missing, his daughter was more than 18 years and that he had given wrong date of birth of his daughter in his statement Ex.PW4/A, as 17 years and 9 months.
41. Thereafter, Ld. Addl. PP for the State sought permission to re- examine this witness on the aspect of exact date of birth of the victim and he was allowed. In his re-examination done by ld. APP, PW-7 has admitted that he had told the age of his daughter, as, 17 years and 9 months, as mentioned in portion A to A of statement Ex.PW4/A. He has denied the suggestion that he was deposing falsely in his cross-examination on the point of age of his daughter.
42. He was again cross-examined by the ld. Counsel for the accused and during his cross-examination he has admitted that he had given such date of birth of his daughter in his statement Ex.PW4/A, at the instance of the police and that on the day of missing, his daughter was having Aadhar Card and that he had seen the copy of Aadhar Card of his daughter on file (Ex.PW7/DA). He has denied the suggestion that he has deposed falsely.
43. Ms. Neera, who is school Incharge of EDMC Primary School, has been examined as PW-8, who has proved the certificate issued by the then Principal Smt. Natho Devi as Ex.PW8A and PW-8 identified the SC No. 340/2017 State Vs. Imran Page 27 of 47 signature of Smt. Natho Devi in official capacity, as, she had worked with her. She has further testified that as per their admission register, date of birth of the prosecutrix is 08.07.97 and at the time of admission, the date of birth was given by her mother. The copy of admission form is Ex.PW8/B and the copy of admission register having entry of prosecutirx at S. No. 4479 is Ex.PW8/C and she has further testified that the prosecutrix got admission in their school on 01.08.2002 in 1st class and she studied in her school for only one year and on dated 13.12.2002, name of the said student was struck off due to long absence. She has further testified that both the documents Ex.PW8/B and Ex.PW8/C and the certificate issued by the then principal are correct and as per their record.
44. The opportunity to cross-examine this witness was given to the accused, but, the ld. Counsel for the accused did not cross-examine this witness, therefore, the opportunity of the accused to cross-examine this witness was done nil.
45. W/HC Saloni has been examined as PW-9. She has testified that on dated 09.07.2015, while she was posted as constable at police station New Usmanpur, Delhi, she was on night duty from 8:00 PM to 8:00 AM and at about 9:30 PM, SI C.P. Sharma called her for getting the medical examination of prosecutirx. She has further testified that SI C. P. Sharma SC No. 340/2017 State Vs. Imran Page 28 of 47 had recorded statement of prosecutrix in her presence and thereafter, she (PW-9) was asked to take her to JPC hospital for medical examination, where, prosecutrix was medically examined and after getting MLC from the hospital, same was handed over to the IO and on the next day i.e. 10.07.2015, the custody of prosecutrix was given to W/Ct. Shanta Rawat.
46. This witness was cross-examined by the ld. Counsel for the accused and during her cross-examination, she has deposed that she does not remember as to what was deposed by the prosecutrix in her statement recorded U/sec. 161 Cr.P.C. by the IO. She has admitted it to be correct that at the time of recording of the statement of the prosecutrix by the IO, the mother and father of the prosecutrix were also present.
47. She has admitted that at that time, accused was not present. She has also admitted that the prosecutrix had refused for her medical examination and the prosecutrix had also given in writing to the CMO for not doing her medical examination in the presence of her mother and father. She has denied that IO had not recorded the statement of the prosecutrix in her presence. She has admitted that the prosecutrix had told her that she is more than of 18 years of age and she is in love with accused Imran and she wants to live with Imran. She has denied that she has deposed falsely at the instance of the IO.
SC No. 340/2017 State Vs. Imran Page 29 of 47
48. Mr. Sudhir HC has been examined as PW-10 who has deposed that on 22.05.2015, he and W/Ct Rajni were directed by the IO SI Chhail Bihari Sharma to go to Police Station BisrathGanj, Distt. Barailly, UP in search of missing victim with the permission of the senior police officer. He has further testified that they went to the police officials and parents of the victim were also proceeded to PS BisrathGanj and they arrived at there on the same evening and one police official from local police station was also taken and thereafter, they searched the missing victim in village Mazgawa, at the house of accused Imran and minor victim was recovered from the house of accused Imran and accused Imran was not present there. They brought the victim to the Police Station New Usmanpur and produced before IO SI Chhail Bihari and this witness did not prepare any document during the said period. He has further deposed that they made search of accused Imran, but, in vain, as his father did not cooperate and this witness had recorded arrival and departure entry at concerned police station, copies whereof are Ex.PW10/A and Ex.PW10/B respectively.
49. This witness was cross-examined by Ld. Counsel for the accused and during his cross-examination he deposed that he did not remember whether he had seen ROZNAMCHA register at Bisrath Ganj, Bareilly or not. He has also admitted that site plan of place of recovery was SC No. 340/2017 State Vs. Imran Page 30 of 47 also not prepared and they had not collected any document of ownership of premises from where, the girl was recovered. He has also admitted that no statement of any villager was recorded to the effect that the house belonged to the father of the accused. He has also admitted that public persons of the locality were present, but, no one from the public persons were made as a witness of recovery of the girl. He has also admitted that they had not visited the Pradhan of the said village, no videography or photography was conducted during recovery proceedings at the house of the accused. He has also admitted that the statement of the proseuctrix was not recorded at the place of recovery. He has also admitted that they did not get the medical examination of the prosecutrix done and voluntarily deposed that the prosecutrix was medically examined at Delhi. He has denied that the prosecutrix was not recovered from the house of the accused. He has also deposed that no efforts were made to arrest the accused from his house. He has denied that the house, from where, the prosecutrix was allegedly recovered does not belong to the accused. He has denied that all the documents were prepared while sitting at the PS or that he has deposed falsely.
50. SI Chhail Bihari, who is the investigating Officer has been examined as PW-11 who has deposed about the investigation of the present SC No. 340/2017 State Vs. Imran Page 31 of 47 case and proved the document DD No. 36A Ex.PW11/A, copy of Zipnet information Ex.PW11/B, carbon copy of W.T Message Ex.PW11/C, carbon copy of missing person form Ex.PW11/D, Seizure memo Ex.PW11/E, carbon copy of CWC proceedings Ex.PW11/F, detailed report on the statement of the prosecutrix dated 26.05.2015 Ex.PW11/H, application moved by the IO for recording statement of the prosecutrix U/sec. 164 of Cr.P.C.Ex.PW11/I, statement of the prosecutrix Ex.PW11/J, proceedings and certificate issued by Ld. Metropolitan Magistrate Ex.PW11/K, written request for receiving carbon copy of statement of the prosecturix Ex.PW11/L and deposed that he had prepared the chargesheet against the accused Imran for the offence punishable U/sec. 363/366 of IPC.
51. He was cross-examined by ld. Counsel for the accused. During his cross-examination, he has deposed that he had verified the age of the prosecutrix as 17 years and 9 months. He has admitted that the prosecutrix was not recovered from the possession of the accused or from the house of the accused. He has also admitted it to be correct that no articles of the prosecutrix were recovered from the possession of the accused. He has also admitted that no document/conversion certificate etc. regarding solemnization of Nikah/marriage was recovered from the accused. He has admitted that no independent witness was examined by him to prove that SC No. 340/2017 State Vs. Imran Page 32 of 47 accused had been seen while going with the victim. He has also admitted that no witness has been examined to the effect that the accused had married with the victim at any point of time. He has also admitted that he had never checked the birth certificate of the prosecutrix from the parents or from the concerned department. He has also deposed that he cannot say whether the photocopy of date of birth certificate Mark 4/1 can be wrong or not. He has also admitted that no statement of any witness was recorded from the place where the victim was recovered. He has also admitted that he never visited the village, from where, the victim was recovered.
52. Dr. Neeta Sagar has been examined as PW-12 who has proved the MLC of the prosecutrix Ex.PW2/A. She was not cross-examined by the ld. Counsel for the accused.
53. Ms. Prabhjeet Kaur, the Ld. Metropolitan Magistrate has been examined as PW-13, who has proved the statement of the prosecutrix recorded U/sec. 164 Cr.P.C. Ex.PW11/J and proceedings and appended certificate regarding the correctness of TIP recorded by her Ex.PW11/A. She was not cross-examined by the ld. Counsel for the accused.
54. After completion of evidence of the prosecution the, statement of the accused U/sec. 313 Cr.P.C. was recorded wherein all the incriminating evidences led against him by the prosecution were put before him. The SC No. 340/2017 State Vs. Imran Page 33 of 47 accused has denied the correctness thereof and claimed innocence and also deposed that the brother of the victim was friend of him and victim never went with him at his village. He has further deposed that three times police officers called him in the name of inquiry and obtained his signatures on blank papers and later on they had registered the present case under the pressure of Hindu Sanghthan, Bajrang Dal and he was taken into custody and he was sent in Judicial custody. Accused did not examine any witness in his defence.
55. Since, the perusal of the record reveals that in the case in hand, FIR was registered on the statement of the father of the prosecutrix, wherein, he has stated that his daughter 'RS' (presumed name of the prosecutrix), aged about 17 years and 9 months had gone from home on dated 27.01.2015 at 10:00 PM and he has suspicion that some unknown person has induced and enticed away his daughter and the perusal of the record reveals that the complainant 'TKS' (who is father of the prosecutrix and who has been examined as PW-7) during his examination-in-chief, he has deposed that the missing girl i.e. the prosecutrix was found on the way near house of accused Imran and during his cross-examination, he has admitted that on the day of missing of the prosecutrix, she was more than 18 years of age.
56. No doubt that at the time of re-examination of this witness by SC No. 340/2017 State Vs. Imran Page 34 of 47 the Ld. Addl. PP for the State, he has admitted that he had told age of prosecutrix as 17 years and 9 months in his statement Ex.PW4/A. But, he has denied that he has deposed falsely in his cross-examination on the point of age of his daughter i.e. prosecutrix and when he was again cross- examination by Ld. Counsel for the accused, he has admitted that he had given the date of birth of his daughter in his statement Ex.PW4/A at the instance of the police. Thus, the testimony of PW-7 is found to be inconsistent to his statement Ex.PW4/A.
57. The prosecutrix 'RS' (presumed name of the prosecutrix) has been examined as PW-2 and in her examination in chief, she had admitted that she was on friendly terms with the accused, but, she has alleged that on 27.04.2015 at about 7:00-7:30 PM, accused had telephonically called her and at about 8:00 PM, she arrived in the restaurant, where accused Imran served her cold drink and after consuming the said cold drink, she lost her senses, but, the perusal of the statement of the prosecutrix recorded U/sec. 164 of Cr.P.C. does not reveal such allegation that she was served any cold drink by the accused or that on consuming thereof, she lost her senses. This prosecutrix has also alleged in her statement recorded in this court that the accused had threatened to kill her family members and to kidnap her sister, but, the said allegations were not found in her statement recorded U/sec. 164 SC No. 340/2017 State Vs. Imran Page 35 of 47 of Cr.P.C Ex.PW2/C.
58. The perusal of the cross-examination of this prosecutrix reveals that she was admitted that she was in love with the accused. She has also admitted in her cross-examination that she was sent to Sanskar Ashram. She has also admitted that after coming to Delhi from the village of the accused at District Bareilly, Uttar Pradesh, she was not willing to go to her house, with her parents, so, she was sent to Sanskar Ashram. She has also admitted that she had stated in her statement u/s. 164 of CrPC that her brother used to say that she was not his real sister and that she was his cousin and that he was having wrong relations (galat sambandh) with her and due to that reason, she had gone with the accused voluntarily of her own free will without any enticement or force on the part of the accused. She has also admitted in her cross-examination that she had stated before the doctor who had prepared her MLC Ex.PW2/A that she had gone to Khurja at the house of her Bhabhi's parents and stayed there upto 20.05.2015 and thereafter, she went to Bareilly for friend's wedding and her Bhabhi's uncle saw her in the wedding and informed her father. The prosecutrix has also deposed that she does not know by which vehicle, she was taken to Bareilly. She was admitted that she was having her mobile phone with her on 27.04.2015. She has also admitted that she had not stated to the police officials and to the ld. SC No. 340/2017 State Vs. Imran Page 36 of 47 Judge, at the time of her recording statement u/s. 164 of CrPC that the accused had administered some intoxicating substance to her in the cold drink and she has also deposed in her cross-examination that she does not want that the accused may be punished. Thus, statement of the prosecutrix recorded in the court is absolutely inconsistent to her statement recorded U/sec. 164 Cr.P.C. by the Ld. Metropolitan Magistrate as in her statement recorded U/sec. 164 of Cr.P.C., Ex.PW2/J, she has nowhere leveled allegation of administering of any stupefying substance to her by the accused. The perusal of statement recorded U/sec. 164 Cr.P.C. reveals that she has deposed before the Ld. Metropolitan Magistrate that she was having love affair with this accused and accused used to come to her house and he used to sit with her brother and all her family members knew about her love affair except her father and she had also asked to her family member to marry her with the accused, but, they did not agree and she has also stated therein that on 27.04.2015, she had voluntarily gone with the accused. She has also stated that her brother used to defame her and thus the said statement of the prosecutrix reveals that she has nowhere leveled the allegation of kidnapping or administration of intoxicating substance by the accused to her. The perusal of the MLC Ex.PW2/A of the prosecutix reveals that it is also mentioned therein by the doctor that the prosecutrix SC No. 340/2017 State Vs. Imran Page 37 of 47 told that her mother used abusive language against her due to which on 27.04.2015 at about 7: 00 PM, she went to the house of her Bhabhi's parents at Khurja and stayed there upto 20.05.2015. She had also told that she had gone at Barelley for friend's wedding on 20.05.2015 and her Bhabhi's uncle saw her in the wedding and informed her father. Thus, from the said statement of the prosecutirix given before the doctor, it is clear that the statement of the prosecutrix recorded in the court is absolutely inconsistent to her statement recorded by the Ld. Metroplitan Magistrate U/sec. 164 of Cr.P.C and facts deposed by the prosecutrix before the doctor, who had prepared her MLC. So, the testimony of the prosecutrix does not inspire any confidence.
59. The mother of the prosecutrix has been examined as PW-4 who has deposed in her examination that the age of the prosecutrix was 17 years and 7-8 months at the time of her missing and she has also deposed that on dated 27.04.2015 at about 10:00 AM, her daughter/victim had left the house to go to her school/ Centre for appearing in examination of the 12 th class,but, she did not return. This witness has also deposed that this prosecutirx was found confined in a room at Visharath Ganj District Barilley, at the time of her cross-examination, she has denied that prosexutirx was not recovered from Visharath Ganj. She has admitted that the prosecutrix did not tell her SC No. 340/2017 State Vs. Imran Page 38 of 47 anything about her abduction or kidnapping. She has also admitted that the prosecutrix was major on the date of her missing. The perusal of the record reveals that W/HC Rajni who has been examined as PW-6, during her cross- examination has deposed that the victim and accused were overpowered by HC Sudhir when they arrived village Visharath Ganj. Thus, the testimony of this witness is contrary to the testimony of HC Sudhir and IO/SI Chhail Bihari Sharma as they have no where deposed that accused was found with the prosecutrix.
60. The perusal of the cross-examination of the Investigating Officer, (who has been examined as PW-11)reveals that he had admitted that the prosecutrix was not recovered from the possession of the accused or from the house of the accused.
61. Thus the testimonies of the witnesses of the prosecution are found to be inconsistent on the material points, as in the case in hand, the FIR has been registered on the statement of father of the prosecutrix "Sh. T.K.S"(name is withheld to protect the identity of the father of victim/prosecutrix) who has testified that on 27.04.2022 at about 10:00 PM, she had gone from home after taking black bag of Fast-Track. If the testimony of the prosecutrix,(who has been examined as PW-2) is looked into, she has deposed that on 27.04.2015 at about 7:00 to 7:30 PM, accused SC No. 340/2017 State Vs. Imran Page 39 of 47 had made telephonic call to her and she arrived in the restaurant at 8:00 PM and the mother of the prosecutrix(who has been examined as PW-4) has deposed that on 27.04.2015 at about 10:00 AM, her daughter/victim had left the house in her presence to go to her school for appearing in her examination of 12th class. Thus, there are material contradiction in the testimony of PW-2, PW-4 and PW-7 regarding leaving the house of the prosecutrix on 27.04.2015. It is worthwhile to mention her that prosecution has set up the case that the prosecutrix was kidnapped by unknown person on dated 27.04.2015,but, in the case in hand, the FIR has been registered on the statement of the father of the prosecutrix on 30.04.2015. The delay in lodging of the FIR also creates doubt in the case of the prosecution.
62. The prosecutrix is alleged to have been kidnapped on dated 27.04.2015 and she is alleged to have been recovered from the house of the accused on dated 23.05.2015.
63. The prossecutrix has told to the doctor(who has prepared her MLC Ex. PW2/A) that she went to the house of her Bhabhi's parents at Khurja and stayed there upto 20.05.2015 and she went to Barelly on her friend's wedding. From such noting on the MLC of the prosecutrix Ex. PW2/A also it becomes clear that the prosecutrix was freely going in the house of her relatives and she had also attended the marriage of her friend at SC No. 340/2017 State Vs. Imran Page 40 of 47 Bareilly during the said period. Since, the statement of the prosecutrix recorded U/sec. 164 of Cr.P.C. Ex.PW11/J reveals that she had gone with the accused voluntarily and soon after return to Delhi, this prosecutrix did not choose to live with her parents, all such conducts of the prosecutrix go to prove that she had gone with the accused voluntarily that is why in the last of her cross-examination, she has deposed that she had love affair with the accused and she does not want that the accused be punished.
64. It is worthwhile to mention here that the prosecution claims that the prosecutrix was recovered from the house of the accused. The prosecutrix has failed to tell the name of the village, wherein, the house of this accused is situated.
65. The mother of the prosecutrix has been examined as PW-4 and she has deposed in her examination in chief that the victim had told them that she was in the area of Visharath, Distt. Barelley and claimed that the victim was found confined in a room at aforesaid place. During her cross- examination, she had admitted that she had stated in her statement recorded U/sec. 161 of Cr.P.C. that her daughter was recovered from Majhgawa and during her cross-examination, she has also admitted it to be correct that her daughter was alone on the way to village Majgawa.
66. The father of the prosecutrix (who has been examined as PW- SC No. 340/2017 State Vs. Imran Page 41 of 47
7) has also deposed that the prosecutrix was found on the way near the house of accused Imran, whereas HC Sudhir (who has been examined as PW-10) has deposed that the prosecutrix was recovered from the house of the accused. IO SI Chhail Bihari during his cross-examination has admitted that the prosecutrix was not recovered from the house of the accused.
67. The prosecution has failed to bring on record any cogent evidence to show that this prosecutrix was recovered from the house of the accused. In view of the above contradictions in the statements of the witnesses of the prosecution, the alleged recovery of the prosecutrix from the house of accused also becomes doubtful.
68. Since, Their Lordship of the Hon'ble Supreme Court was pleased to hold in case 'Suraj Mal Vs. State (Delhi Administration) AIR 1979 Supreme Court 1408' was pleased to hold that:
"it is well settled that where witnesses make two inconsistent statements in their evidence either on one stage or at two stages, the testimony of such witness become unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on the evidence of such witness."
69. Their lordship of High Court of Delhi in Rameshwar Giri V. State, 211 (2014) Delhi Law Times, 508, was pleased to observe :-
"16. As held by the Supreme Court in AIR 1965 SC 942, S. Varadarajan V. State such an act would tantamount to 'taking'. The observations of the Apex Court in this context are as under:SC No. 340/2017 State Vs. Imran Page 42 of 47
"The offence of 'kidnapping from lawful guardianship' is defined thus in the first paragraph of Section 361 of the Indian Penal Code:
"Whoever takes or entices any minor under sixteen years of age if a male, 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'
8. It will thus be seen that taking or enticing away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping.........
11. It must, however, be borne in mind that there is a distinction between 'taking : and allowing a minor to accompany a guard ourselves from laying down that in no conceivable circumstance can the two be regarded as meaning the same thing for the purposes of Section 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful quardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian.
12. It would, however, be sufficient if the prosecution establishes that through immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. In SC No. 340/2017 State Vs. Imran Page 43 of 47 our opinion if evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfillment of the intention of the girl. That part, in our opinion, falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to 'taking'."
"17. This version is further fortified by the fact that the victim was admittedly known to the accused as he was residing in the same street since the last 2 years. The fact that the accused was known to the victim is also admitted by both PW6 and PW7 i.e. the mother and father of the victim. PW5 had accompanied the appellant for sightseeing; they did sightseeing for one hour in Delhi; then by a TSR, the appellant took her to the railway station; people were gathered there to purchase tickets. Tickets were purchased by the appellant from the railway station from where he took her to Bihar which would be a more than one day journey. The victim stayed in the village of the appellant 2-3 days. She was never threatened by the persons living in that house/ 5-6 ladies were also present. Other persons from the village also came to meet her. The MLC of the victim also shows that there was no injury upon her person. This corroborates the argument of the Learned Counsel for the appellant that the victim was not subjected to any force.
70. Since, in case in hand, the FIR was registered on the statement of the father of the prosecutrix i.e. PW-7, wherein, he has alleged that he believed that some unknown person has induced & enticed away to his SC No. 340/2017 State Vs. Imran Page 44 of 47 daughter ie prosecutrix, who is about 17 years and 9 months, but, at the time of his cross- examination in this Court, he has admitted that the prosecutrix was major at the time of her missing. Similarly, the mother of the prosecutrix who has been examined as PW-4 who has also deposed in her cross- examination that the prosecutrix was major on the date of her missing. So, it is probable that the prosecutirx may be major on the date of her alleged missing. Since the prosecutrix in her statement recorded U/sec. 164 of Cr.P.C. has deposed that she had voluntarily gone with the accused and prosecutrix in her cross-examination in the court has also admitted that she was having love affair with the accused and she had also deposed before the doctor, who had medically examined her that she had gone to the house of her Bhabhi's parents at Khurja and stayed there upto 20.05.2015 and returned from there at Barelley to attend the marriage of her friend, thus from such testimony of the prosecutrix, it is inferred that this may be the case of elopement of the prosecutrix with the accused and not the case of kidnapping by the accused.
71. No doubt that PW-8 Ms. Neera has produced the record of the school in accordance with which the date of birth of the prosecutrix was 08.07.1997, but as the mother and father of the prosecutrix have admitted during the cross-examination that the prosecutrix was major on the date of SC No. 340/2017 State Vs. Imran Page 45 of 47 her missing and even otherwise, as per the record of the school produced by PW-8, the prosecutrix was more than 17 years 9 months of age on the date of her alleged missing, since, the prosecutrix is living in metro city Delhi, she is studying in 12th class, she is an urban girl and her statement recorded by the Ld. Metropolitan Magistrate U/sec. 164 Cr.P.C. Ex.PW also reveals that she had voluntarily gone with the accused. Thus, the prosecutrix was at the age of discretion. So, in the above discussed circumstance, she would have eloped with the accused.
72. So, taking into consideration the material inconsistencies and contradictions in the testimonies of PW-2, PW-4 and PW-7, this court is inclined to hold that the testimonies of PW-2, PW-4 and PW-7 are inconsistent, suspicious, unreliable & untrustworthy, so, the same do not inspire any confidence. Therefore, benefit of doubts is given to this accused. Since, the charges against this accused were framed U/sec. 363/366 of IPC, therefore, I am inclined to hold that the prosecution has failed to prove that the accused has committed the offences punishable U/sec. 363/366of IPC beyond reasonable doubt. I am inclined to hold that prosecution has failed to bring on record any cogent evidence to prove that the prosecutrix was taken or enticed away by the accused with the intention to compel her to marry. Accordingly, accused Imran is acquitted of the charges framed against SC No. 340/2017 State Vs. Imran Page 46 of 47 him. The accused Imran is directed to furnish the bail bond in the sum of Rs.10,000/- with one surety of like amount, as per the provision of Section 437(A) of Cr.P.C, for next six months to ensure his presence in the Hon'ble appellate court and on filing of bail bond and surety bond, the file be consigned to the Record Room.
Announced in the open court PAWAN Digitally signed
by PAWAN
today i.e. on 20.10.2022 KUMAR KUMAR MATTO
Date: 2022.10.20
MATTO 17:05:51 +0500
(PAWAN KUMAR MATTO)
Additional Sessions Judge [Special Judge (NDPS)
North-East District/Karkardooma Courts, Delhi
SC No. 340/2017 State Vs. Imran Page 47 of 47