Delhi District Court
State vs Vishal on 20 May, 2024
IN THE COURT OF SH. APOORV GUPTA, MM-02,
CENTRAL DISTRICT, TIS HAZARI COURT, DELHI
STATE VS. VISHAL
FIR No. 268 / 2010
POLICE STATION TIMAR PUR
U/S 363 IPC
Date of institution of the case : 17.12.2012
Date of judgment reserved : 09.04.2024
CNR : DLCT020017442012
Date of commission of offence : 14.10.2010
Name of the complainant : Sh. Rishipal
Name and address of accused : VISHAL
S/o Sh. Nathu Singh,
Present Address : Gali No.11,
Amrit Vihar, Nathu Colony, Burari,
Delhi.
Permanent Address : Village Sirsabadan,
PS & Tehsil Mahrara, District Etta,
Uttar Pradesh.
Offence complained of : 363 IPC
Plea of the accused : Pleaded not guilty
Date of Judgment : 20.05.2024
Final order : ACQUITTAL
JUDGMENT
CASE OF THE PROSECUTION :
1. The prosecution story, in nutshell, is that on 14.10.2010 accused Vishal kidnapped minor girl Khajanshri @ Kirti from the lawful guardianship of her step father Rishipal and thereby accused committed offence punishable under Section 363 IPC.
STATE VS. VISHAL FIR NO. 268 / 2010 PS TIMAR PUR PAGE NO. 1 / 11 APOORV Digitally signed by APOORV GUPTA GUPTA Date: 2024.05.20 12:58:17 +0530 COURT PROCEEDINGS :
2. Investigation was completed and police report u/s 173 Cr.P.C was filed under Section 363 IPC. Cognizance was taken and accused was summoned.
Provisions of Section 207 Cr.P.C. were complied with after appearance of the accused.
CHARGE :
3. After hearing arguments on point of charge, charge for the offence under Section 363 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
EVIDENCE OF THE PROSECUTION :
4. In order to substantiate its case, prosecution has examined twelve witnesses.
5. PW-1 HC Pankaj Singh was working as duty officer. On 15.10.10 at about 12:35 am after receiving rukka FIR No. 268/10 Ex. PW-1/A was registered and endorsement on the rukka Ex. PW-1/B was made.
6. PW-2 Ramvati has deposed that her daughter's name is Kirti and in the year 2010, her age was 15 years. In the year 2010, accused Vishal had took away her daughter Kirti from her house. She along with her husband Rishipal had informed the police station regarding aforesaid incident and after some time her daughter was recovered. Police had recovered her daughter Kirti along with accused Vishal and she got married with another boy. Rishipal is her second husband as her first husband Rameshwar had expired.
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7. PW-3 Ct. Hari Mohan joined investigation with the investigating officer and is a witness to proceedings conducted by the investigating officer.
8. PW-4 SI Harendra Singh is the investigating officer. On 01.07.2012 investigation of the case was marked to him. On 22.08.2012, he alongwith Ct. Hari Mohan went to U.P. in search of victim Kirti. They went at PS Basoli. They went to village Mai Khurd and Mai Bajurg in search of the victim but she could not be traced out. Thereafter, they went to village Mai Buchan, where the complainant and his family was traced out. Complainant Rishipal informed that his marriage was solemnized with Ramvati. They went to the school of prosecutrix for her age proof and collected the school leaving certificate and age certificate from the principal of the school and same was seized vide seizure memo Ex. PW-3/A.
9. PW-5 Ct. Krishan joined investigation with the investigating officer and is a witness to arrest of accused.
10. PW-6 Rishi Pal is the complainant. He has deposed that his daughter Kirti @ Khajanshree, aged about 15 years, used to work near Batra Cinema at H. No. 12 at the house of advocate Hans. She used to return house at about 02:00 PM. On 14.10.2010, she went to her work place and did not return till 02:30 PM. He searched for her but could not trace her. He went to police station and gave his complaint Ex. PW-6/A. On next day her daughter was found and she was sent to Nirmal Chhaya.
11. PW-7 Vijay Laxmi produced letter issued by CWC-I Ex. PW-7/A member regarding the summoned original report dated 15.11.2010 Ex. PW-7/B in respect of child Kirti @ Khajan Shree. He stated that original record dated 15.11.2010 is not available in office of CWC-I. STATE VS. VISHAL FIR NO. 268 / 2010 PS TIMAR PUR PAGE NO. 3 / 11 APOORV Digitally signed by APOORV GUPTA GUPTA Date: 2024.05.20 12:58:55 +0530
12. PW-8 Nasruzzaman Naqv has deposed that as per certificate Ex. PW- 8/A date of birth of Khajan Shri was 12.07.1994. The original school leaving certificate of Khajan Shree is Ex. PW-8/B. Both the certificates were seized vide seizure memo Ex. PW-3/A. Original register no. 17 maintained by the school where entry regarding Ms. Khajan Shree is made at S. No. 477 is Ex. PW-8/C.
13. PW-9 Gajender Singh has deposed that Rameshwar was from his village and he got married to one Ramvati. He was father of Khajan Shri. He was having five siblings namely Subhash, Jitender, Khajan Shri @ Kirti, Nawab Singh and Preeti. Rameshwar died in the year 2000 and his wife had taken care of siblings of Rameshwar after his death. She also got re-married to one Rishi Pal who was relative of Rameshwar and resident of said village. Ramvati expired two years back. His statement Ex. PW-9/A was recorded.
14. PW-10 SI Devender Pranava is the investigating officer. He has deposed that on 14.10.2010 information vide DD No. 37-A regarding missing of one girl was received. He went to the house of victim situated at Gopalpur Village, House No. 256, Gali No. 10, Delhi, where statement of Rishipal Ex. PW-1/B was recorded. Rukka Ex. PW-10/A was prepared. Wireless message was sent to all the SSPs in India, DCPs and SHOs in Delhi regarding missing of girl namely Kirti who is aged about 15 years. Copy of the same is Ex. PW-10/B. He uploaded the information of missing girl on zip net. On 04.11.2010, Kirti came back to her house. Accused Vishal was arrested vide arrest memo Ex. PW-5/A.
15. PW-11 Dr. Ruby Kumari has deposed that on 04.11.2010 at about 2:10 pm, victim Khazan Sri @ Kirti was brought by Ct. Seema for medical examination and she was medically examined vide MLC No.2705/10 Ex. PW-11/A. STATE VS. VISHAL FIR NO. 268 / 2010 PS TIMAR PUR PAGE NO. 4 / 11 APOORV Digitally signed by APOORV GUPTA GUPTA Date: 2024.05.20 12:59:01 +0530
16. PW-12 SI Manohar Lal has deposed that on 14.11.2011 further investigation of the case was marked to him. He went to Nirmal Chhaya to verify the age of victim by conducting bone age X-Ray but the same could not be conducted as the victim was pregnant at that time. After completing the formalities, he prepared the charge-sheet.
17. Victim Kirti @ Khajanshri could not be examined by prosecution as her summons were received back within report that she is missing since 2010 and even her father stated that her whereabouts are not known.
ADMISSION / DENIAL OF DOCUMENTS :
18. Accused in his statement under section 294 Cr.P.C did not dispute the genuineness and correctness of statement of victim Khajan Shree @ Kirti u/s 164 Cr.P.C. In view of the admissions made, the evidence of Sh. Sandeep Gupta, the then Ld. MM was dispensed with.
STATEMENT / DEFENCE OF THE ACCUSED :
19. After conclusion of this evidence, the prosecution evidence was closed and statement of the accused under Section 313 Cr.P.C. was recorded. He pleaded innocence and stated that he has been falsely implicated in the present matter. He did not prefer to lead any evidence in his defence.
20. I have heard the submissions of Ld. Counsel for the accused and Ld. APP for State and have carefully gone through the material on record.
ANALYSIS AND FINDINGS:
21. In the present case, accused has been charged for committing the offences punishable u/s 363 IPC.
STATE VS. VISHAL FIR NO. 268 / 2010 PS TIMAR PUR PAGE NO. 5 / 11 APOORV Digitally signed by APOORV GUPTA GUPTA Date: 2024.05.20 12:59:08 +0530
22. Section 363 IPC provides punishment for kidnapping and reads as "Whoever, kidnaps any person from (India) or lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
23. Offence of kidnapping is defined U/s 361 IPC, which provides "Whoever takes or entices any minor under sixteen years of age if a male, or under 18 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."
24. Thus for the purpose of attracting the provision of Section 361 IPC i.e. for the purpose of proving the offence of kidnapping four essential ingredients are required to be satisfied:
(1) Taking or enticing away a minor or a person of unsound, (2) Such minor must be under sixteen years of age, if a male, or under eighteen years of age, if a female, (3) The taking or enticing must be out of the keeping of the lawful guardian of such minor or person of unsound mind, and (4) Such taking or enticing must be without the consent of such guardian.
25. It was held by the Hon'ble Apex Court in the case of State of Haryana Vs. Raja Ram AIR 1973 SC 819 that the object of Section 361 IPC is as much to protect the minor children from being seduced for improper purpose as to protect the rights and privileges of guardians having the lawful charge or custody of their minor wards.
STATE VS. VISHAL FIR NO. 268 / 2010 PS TIMAR PUR PAGE NO. 6 / 11
APOORV Digitally signed by
APOORV GUPTA
GUPTA Date: 2024.05.20
12:59:14 +0530
26. The gravermen of this offence lies in the taking or enticing of a minor under the age specified in this section out of the keeping of the lawful guardian without the consent of such guardian. The words " takes or entices any minor......out of the keeping of lawful guardian of such minor" in Section 361 IPC are significant.
27. It was held in the case of Thakorlal D. Vadgama Vs State of Gujarat AIR 1973 SC 2313 by the Hon'ble Apex Court that the two words 'takes' and 'entices' as used in Section 361 are intended to be read together, they suggest that if the minor leaves her parental home, completely uninfluenced by any promise, offer or inducement from the side of the accused, then the accused is not guilty U/s 361 IPC. However, if the accused had laid a foundation by inducement, allurement, or threat etc., and if this can be considered to have influenced the minor or weighed with her in leaving her guardian's custody or keeping and going to the accused, then it would be difficult for the accused to plead that the minor had voluntarily come to him.
28. It was further held by the Hon'ble Apex Court that if the accused had at an earlier stage solicited or induced her in any way to leave her guardian's protection, by indicating or conveying or encouraging suggestion that he would give her shelter, then the mere circumstance that his act was not the immediate cause of her leaving her parental home or guardian's custody would constitute no valid defence and would not absolve him.
29. It is a settled legal principle that the prosecution has to prove its case beyond the shadow of the reasonable doubt and has to stand upon its own legs. The prosecution cannot draw any strength from the weakness of the case of the accused. It is also a settled proposition in the criminal law that the accused has a pious right of not to be convicted for an offence which is not established beyond reasonable doubts by the prosecution. The burden of proof in a criminal trial always rest upon the prosecution and the same never shifts on accused.
STATE VS. VISHAL FIR NO. 268 / 2010 PS TIMAR PUR PAGE NO. 7 / 11
APOORV Digitally signed by
APOORV GUPTA
GUPTA Date: 2024.05.20
12:59:21 +0530
30. Thus in a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
31. In the light of the ratio of the aforesaid judgment, as well as the provisions of law, let me examine whether the prosecution has been able to prove its case beyond reasonable doubt or not.
31.1. In brief, the case of the prosecution is that on is that on 14.10.2010 accused Vishal kidnapped minor girl Khajanshri @ Kirti from the lawful guardianship of her step father Rishipal.
31.2. Firstly, the prosecution was to prove that the age of victim i.e Kirti @ Khajanshri was below 18 years of age on the date of incident. In the present case in hand, the age of prosecutrix becomes relevant to ascertain the guilt of accused. In the FIR Ex. PW-1/A, PW Rishipal Sant Ram did not reveal the date of birth of her daughter and merely stated that age of her daughter is 15 years. In the MLC Ex. PW- 11/A prepared on 04.11.2010, her age was recorded as 19 years. As per, statement of victim recorded u/s 164 Cr.P.C she is 18 years old. As per CWC report age of prosecutrix is 15 years. As per school leaving certificate Ex. PW-8/B date of birth of Khajanshri is 12.07.1994 and as per entry no. 477 maintained in original register no. 17 maintained by school Ex. PW-8/C date of birth of Khajanshri is 12.07.1994. Thus the prosecution has been able to prove that the prosecutrix was a minor i.e. less than the age of 18 years and was thus a minor and therefore, would be covered U/s 361 IPC.
STATE VS. VISHAL FIR NO. 268 / 2010 PS TIMAR PUR PAGE NO. 8 / 11
APOORV Digitally signed by
APOORV GUPTA
GUPTA Date: 2024.05.20
12:59:27 +0530
31.3. Secondly, the prosecution was required to prove that the victim of the present case was enticed or taken away out of the keeping of lawful guardianship of her father. In order to prove the same, testimony of PW-2 Ramvati and PW-6 Rishipal is material.
31.4. PW-2 Ramvati in her deposition has stated that in the year 2010, accused Vishal had took away her daughter Kirti, aged about 15 years, from her house. She along with her husband Rishipal made complaint regarding the same and after some time her daughter was recovered along with accused Vishal. She got married with another boy.
31.5. PW-6 Rishipal, in his initial complaint Ex. PW-6/A which became bedrock of investigation, stated that his daughter Kirti aged about 15 years used to work near Batra Cinema at H. No. 12 at the house of advocate Hans. She used to return house at about 02:00 PM. However, she went to her work place and did not return till 02:30 PM. He searched for her but could not trace her. While appearing as PW-6 he reiterated his complaint and stated that his daughter Kirti @ Khajanshree, aged about 15 years, used to work near Batra Cinema at H. No. 12 at the house of advocate Hans. She used to return house at about 02:00 PM. On 14.10.2010, she went to her work place and did not return till 02:30 PM. He searched for her but could not trace her. He went to police station and gave his complaint Ex. PW-6/A. On next day her daughter was found and she was sent to Nirmal Chhaya.
31.6. Victim Kirti in her statement record u/s 164 Cr.P.C has stated that she was 18 years old. During Navrata time, she went to Punjab along with accused Vishal and married him out of her will. Vishal was residing at Wazirabad. On 02 nd November she returned to her house and she was taken to police station and was later sent to Niramla Chaya on 04th November.
STATE VS. VISHAL FIR NO. 268 / 2010 PS TIMAR PUR PAGE NO. 9 / 11
APOORV Digitally signed by
APOORV GUPTA
GUPTA Date: 2024.05.20
12:59:32 +0530
32. In view of the law laid down in the case of Thakorlal D. Vadgama (Supra), the taking or enticing of a minor as contemplated in Section 361 IPC is one of the essential ingredient to bring the case within the four corners of this section. The best person to depose about this fact was victim herself. However, she has nnot been examined by the prosecution on the ground that she is not traceable.
33. Furthermore, after her recovery, she was taken to AAA Hospital for medical examination. At that time she herself gave the history to the doctor "She went with her will and got married to the person and she is staying with her husband". At that time she gave her age as 19 years. She refused to undergo medical examination.
34. She was also produced before Ld. MM for recording of her statement u/s 164 Cr.P.C wherein she stated that 3 days before Navratras, she had gone to Punjab with Vishal and married him. On being called by her mother, she came back on 2 nd November. She got married with Vishal out of her own will.
35. PW-2 Ramvati had stated that in the year 2010, Vishal had taken her daughter from her house. She along with her husband informed police. Now, she is married with another boy. However, PW-6 Rishipal does not corroborate her testimony as he deposed that his daughter used to work in the house of some advocate and used to return house at about 02:00 PM. On 14.10.2010, she went to her work place and did not return till 02:30 PM. They searched for her but could not find her. Thereafter, he lodged complaint with police which is Ex. PW-6/A. If testimony of Ramvati is to be believed then in the complaint, this fact should have been mentioned but there is no allegation that his daughter has been taken by Vishal, Under the circumstances, in the present case, there is no evidence on record to show that accused had enticed or taken away the victim out of the keeping of her guardian STATE VS. VISHAL FIR NO. 268 / 2010 PS TIMAR PUR PAGE NO. 10 / 11 APOORV Digitally signed by APOORV GUPTA GUPTA Date: 2024.05.20 12:59:39 +0530 without the consent of that guardian as alleged on behalf of the prosecution. In fact, from the material on record, it appears that the victim has left her house on her own and went to Punjab and married accused out of her own free will because had that not been the case, the victim must have objected or resisted or raised alarm, while accompanying the accused. In these circumstances, in view of the evidence on record, it is clear that there was no taking or enticing of the victim as has been contemplated u/s 361 of the IPC and as is necessary for constituting of an offence punishable u/s 363 IPC. There is no evidence on record to prove that victim left her parents house, completely uninfluenced by any promise, offer or inducement from the side of accused. Hence essential ingredient of S.361 IPC is missing. That being so, the prosecution has not been able to prove that the accused is guilty of the offence of kidnapping from lawful guardianship as defined U/s 361 IPC and punishable U/s 363 IPC.
36. In view of the aforesaid discussion prosecution has failed to bring home the guilt of the accused beyond reasonable doubt with the result he is entitled to benefit of doubt. He is accordingly acquitted of the offence alleged against him.
Digitally signed APOORV by APOORV
GUPTA
ANNOUNCED IN OPEN COURT GUPTA Date: 2024.05.20
(Apoorv12:59:47
Gupta)+0530
ON 20th MAY, 2024 MM-02, Central District
Tis Hazari Courts/20.05.2024
This judgment consists of 11 pages and each page of this judgment is digitally signed by me.
APOORV Digitally signed by
APOORV GUPTA
GUPTA
(ApoorvDate: 2024.05.20
Gupta)
12:59:52 +0530
MM-02, Central District
Tis Hazari Courts/20.05.2024
STATE VS. VISHAL FIR NO. 268 / 2010 PS TIMAR PUR PAGE NO. 11 / 11