Delhi District Court
State vs Shiv Kumar on 12 August, 2024
IN THE COURT OF SH. Rahul Jain, LD. MM-08 PATIALA
HOUSE COURTS, NEW DELHI
CrC No. 18175/2018
State vs. Shiv Kumar
FIR No.: 223/2018
PS: Naraina
U/s: 363 IPC & 77 JJ Act
JUDGMENT
Date of the Commission of offence 03.10.2011 Date of Institution of the case 01.12.2018 Date of reserving the judgment 16.05.2024 Date of pronouncement of judgment 12.08.2024 Name of the Complainant Ms. Uma Shah D/o Saroj Kumar Singh R/o House No. CB-68, Nariana, Delhi.
Name of Accused, their Parentage Sh. Shiv Kumar S/o Sh.
Baiju lal R/o House no. CB-
68, Ring Road, Naraina, Delhi.
Offences complained of or proved 363 IPC and 77 JJ Act Plea of accused Plead not guilty Final order Acquittal Digitally signed Rahul by Rahul Jain Date: 2024.08.14 Jain 09:45:36 +0530
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. The brief facts of the case are that on 03.10.2011, at about 02:00 PM, at CB-68, Naraina new Gali, within the jurisdiction of PS Naraina, the accused Shiv Kumar, S/o Sh. Baiju Lal, R/o House No. CB-68, Ring Road, Naraina, New Delhi, had taken away the minor girl, namely Uma Shah, from her legal guardianship without the consent of her guardian. Thereby, he committed an offence punishable under Section 363 of Indian Penal Code (hereinafter IPC ) within the cognizance of this court. Furthermore, on the said date, time, and place, the accused also provided liquor to the minor girl, Uma Shah, which was consumed by her. Hence, the accused committed an offence punishable under Section 77 of the Juvenile Justice Act.
Proceedings:
2. After taking cognizance of the offence, the accused was summoned. Upon his appearance, after compliance with Section 207 CrPC, and after hearing the parties concerned, charges were framed against the accused for the commission of offences under Section 363 IPC and Section 77 of the Juvenile Justice (JJ) Act. The accused pleaded not guilty to the charges framed against him and claimed trial.
Admission of Documents and Dropping of Witnesses U/s 294 CrPC:
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3. During the trial, the accused admitted certain documents under Section 294 CrPC, thereby leading to the dropping of the witnesses associated with those documents. The documents admitted by the accused are as follows:
1. Copy of FIR (Ex. A-1)
2. DD No. 15A dated 03.10.2018 (Ex. A-2)
3. DD No. 18A dated 03.10.2018 (Ex. A-3)
4. Statement U/s 164 CrPC dated 04.10.2018 (Ex. A-4)
5. MLC No. 14014/18 (Ex. A-5)
6. CPCR DD No. 03 Oct. 181260284 (Ex. A-6)
7. CPCR DD No. 03 Oct. 181480426 (Ex. A-7)
4. The accused admitted all the aforementioned documents, although he denied the contents of the same, claiming that he had not committed the act in question. Consequently, the prosecution did not examine the witnesses related to these documents.
Evidence of Prosecution Witnesses:
5. The prosecution examined several witnesses to prove its case. The testimonies of the witnesses are summarized as follows:
5.1 PW1, Smt. Lata Devi was examined as PW1. She stated that she is a housewife and has studied up to the 8th standard in Bengali medium. She has four children, out of whom three are girls and one boy. She mentioned that she cannot read or write Hindi. The incident in question pertains to 3rd October, but she does not remember the year of the incident. On the day of the incident, Smt. Lata Devi was not at home and had gone out from around 3:00 PM to 4:00 PM. Upon returning home, she came to know that her Digitally signed by Rahul Rahul Jain Date:
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daughter, Uma Shah, aged about 16 years and some months, had consumed liquor. She learned about this from a police official who visited her at home. Smt. Lata Devi stated that Uma was not present at the home on her return at 4:00 PM. She later came to know that her daughter had been taken to DDU Hospital for a medical examination. She then visited the hospital and saw her daughter in an inebriated condition. Smt. Lata Devi inquired from her daughter about what had happened, and Uma narrated the incident. Uma mentioned that she visited a park where a man named Shiv Kumar was consuming liqor and one glass of cold drink, 'Pepsi' was mixed with liqor and Uma consumed the same in a sportive manner ("mazak mein"). She also stated that some of the neighbors saw this incident, objected to it, and called the police.
The accused, Shiv Kumar, was correctly identified by Smt. Lata Devi in court. She further stated that the medical examination of her daughter was conducted at DDU Hospital, but her daughter refused to get an internal medical examination. Smt. Lata Devi reported the incident to the police, and the accused was arrested in her presence, vide seizure memo Ex. PW1/A, bearing her signature at point A. The IO prepared a site plan of the incident in her presence, and the same is marked as Ex. PW/B, bearing her signature at point A. She stated that she does not wish to depose anything else.
Learned substitute APP for the State sought permission to cross-examine the witness as the witness was resiling from her previous statement recorded under Section 161 CrPC on a material point. The court heard the submissions and allowed the request.
During the cross-examination conducted by the learned substitute APP for the State, the witness was confronted Digitally signed by Rahul Rahul Jain Date:
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with her earlier statement. The APP suggested that the accused, Shiv Kumar, had enticed the witness's minor child and forcefully made her drink liquor. The witness denied these suggestions, stating that it was wrong to suggest that she had not deliberately stated this fact before the court. She further denied that she had stated a portion of her statement, which was marked as Mark PW1/C from point A to A1. The witness refuted the suggestion that she had been won over by the accused and was deliberately trying to save him from criminal prosecution.
In the cross-examination conducted by Sh. C.K. Sharma, the learned Legal Aid Counsel (LAC) for the accused, the witness testified that she reached DDU Hospital at about 05:00 PM on the day of the alleged incident. She was informed by her daughter about the incident in brief as she was in a fit state of mind. The witness admitted that the accused, Shiv Kumar, resided in the same building as her family and was known to her for more than a year. They shared a very close relationship as neighbors. The witness further stated that she did not know the person who had made the complaint to the police. She was only intimated about her daughter being taken to the hospital by the police officials.
The witness stated that the Investigating Officer (IO) took her to the spot where the incident occurred, and the site plan was prepared at her instance. She claimed that the site plan was indeed prepared in the police station, and her signature was obtained on the site plan at the PS. The witness further clarified that her daughter had been going out in her absence with other children and friends. She concluded by asserting that it was wrong to suggest that she was deposing falsely. 5.2 PW2, Uma Shah (Minor) was examined as PW2 and she stated that she is the complainant in the present case and is Digitally signed by Rahul Rahul Jain Date:
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studying in the 9th class in Sarvodaya Kanya Vidyalaya. Uma Shah recounted the incident, stating that on 03/10/2018 at about 2 pm, accused was standing near the grill of her house when the she asked him to accompany him for ice cream but accused refused. Thereafter, accused left the place and went into the park near the colony. After about 30 minutes, she alongwith her friends also went inside the park. While in the park compound, Uma Shah observed Shiv Kumar holding a cold drink bottle (Thumbs Up) and a plastic glass. At that time, she was unaware of the nature of the liquid inside the bottle. The accused had known her prior to the incident, and they were in the habit of exchanging food items. Uma Shah took the glass voluntarily and drank the contents. After some time, she started feeling dizzy. The accused scolded her for drinking the contents, which Uma Shah later learned contained liquor. She began to feel nausea and started vomiting. Two males, aged about 30 to 35 years, approached the accused and started a scuffle with him, questioning why he had served liquor to a minor girl, about 15 years old. People of the locality also gathered at the scene. Subsequently, Uma Shah became unconscious and was taken to the hospital. Her Medical Legal Case (MLC) No. 337/18 is on record. The accused, Shiv Kumar, present in court, was correctly identified by Uma Shah. Uma Shah stated that she had reported the incident to the police, and her complaint was Ex. PW2/A, bearing her signature at point A. She also affirmed that her statement was recorded before the court under Section 164 CrPC, marked as Ex. PW2/B, bearing her signature at point A. Learned substitute APP for the State sought permission to cross-examine the witness as the witness was resiling from her previous statement recorded under Section 161 Rahul Jain Digitally signed by Rahul Jain Date: 2024.08.14 09:46:06 +0530 CrPC on a material point. The court heard the submissions and allowed the request.
During the cross-examination, the witness was confronted with her earlier statement. The learned substitute APP suggested that the accused, Shiv Kumar, had enticed the witness and taken her to the park, where he forcefully made her drink the cold drink mixed with liquor. The witness denied these suggestions, stating that it was wrong to suggest that she had not stated the entire facts today, as previously recorded before the police official or before the court in her statement under Section 164 CrPC. She also refuted the suggestion that she had been won over by the accused and was deliberately not supporting the prosecution's case. The witness further denied the suggestion that she had stated a portion of her statement, marked as Ex. PW2/A from point A to A1. She asserted that it was wrong to suggest that she was deposing falsely today with respect to exculpatory statements.
During the cross-examination by the learned Legal Aid Counsel (LAC) for the accused, Sh. C.K. Sharma, the witness provided further details. She stated that her date of birth is 04.05.2001. The friends who accompanied her to the park on the date of the incident were Pooja, Anjali, and Sanjana. The witness clarified that her friends were not present when she consumed the cold drink that day. She mentioned that she had been in the habit of taking cold drinks and eating together at home even prior to this incident.
The witness explained that the content of the cold drink in the glass on the day of the incident filled about 1/10th of the total space in the glass. She took the entire contents in a single sip, after which the accused, Shiv Kumar, scolded her for doing so.
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After vomiting, she was picked up by the accused and an aunty from the locality, and they were taken to the police van. The witness confirmed that Shiv Kumar used to scold or correct her whenever she did anything wrong. She clarified that neither was she enticed nor was she taken to the park by the accused, and he did not force her to drink the cold drink. She took the drink without knowing and without the permission of the accused, as she had done the same earlier also in his company. The witness concluded by stating that it was wrong to suggest that she was deposing falsely.
5.3 PW3, Sh. R.S. Chauhan was examined as PW3 and he stated that on 29/05/2019, Sh. R.S. Chauhan, Primary Teacher, MCD Primary School, Naraina Village, B-Block, Delhi, appeared on behalf of the Principal of MCD Primary School and was examined as PW3. He brought the summoned records, including the admission record and past file of the prosecutrix. Sh. R.S. Chauhan stated that the victim was admitted to the school on 04/04/2013 in Class 1 and remained there until she passed Class 8. He presented copies of the admission and attendance records, which are marked as Ex. PW3/A (OSR) and Ex. PW3/B (OSR), respectively. 5.4 PW4: Sh. Harish Kumar was examined as PW4 and he stated that he, along with his family, resides at the above- mentioned address and works as an electrician. On 03.10.2018, at about 02:30 PM, he was heading to work at a club when he reached near the park where he found the accused, Shiv Kumar, who was present in the court (correctly identified by the witness), and a minor girl consuming liquor in the park.
When Sh. Harish Kumar asked the minor girl about it, she refused to reply. After some time, the girl became unconscious, at which point Sh. Harish Kumar made a call to the 100 number Digitally signed by Rahul Rahul Jain Date:
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(police). The police arrived at the spot, and the minor and the accused were taken into custody. The police then recorded Sh. Harish Kumar's statement.
During the cross-examination, Sh. Harish Kumar stated that he had seen the girl consuming liquor from a Pepsi bottle and a glass. He mentioned that he could not tell if the bottle and glass were seized by the police or not, nor could he confirm the make or brand of the liquor. Sh. Harish Kumar observed a quarter bottle lying near the spot but could not identify the brand of the liquor it contained. He presumed that the girl had consumed liquor since the quarter bottle was lying near the spot. When he reached the spot , victim had already consumed liqor.
Sh. Harish Kumar clarified that it was correct that he had not seen the exact moment when the accused was serving liquor to the minor. He denied the suggestion that the accused had been falsely implicated in the case and asserted that it was wrong to suggest that he was deposing falsely.
5.5 PW5: Sh. Piyush Tawar was examined as PW5 and he stated that he, along with his family, resides at the above-mentioned address and runs his own electronics shop. On 03.10.2018, between 02:30 PM and 03:00 PM, he was parking his vehicle near the club when he found the accused, Shiv Kumar, who was present in the court (correctly identified by the witness), and a minor girl consuming liquor in the park.
Sh. Piyush Tawar interrogated the accused as to why he was serving liquor to a minor girl. The accused identified himself as Shiv Kumar. The witness asked about the consumption of liquor, and since the girl became unconscious and a crowd gathered around the spot, Sh. Piyush Tawar made a call to the 100 number (police). The police arrived at the spot, and the accused Digitally signed by Rahul Rahul Jain Date:
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and the minor girl were taken into custody by the police. The police then recorded Sh. Piyush Tawar's statement.
During the cross-examination, Sh. Piyush Tawar stated that he had seen the girl consuming liquor. She was holding a Pepsi bottle and a glass. He could not confirm whether the bottle and glass were seized by the police or not, nor could he identify the make or brand of the liquor. The witness mentioned that there was a quarter bottle lying near the spot, but he could not tell the brand of the liquor it contained. He added that the police did not seize the said quarter bottle. When he reached the spot, both the accused and the girl were holding glasses in their respective hands. Further, when he reached the spot , accused was serving liqor to the minor girl. However, the glasses were not seized by the police.
Sh. Piyush Tawar clarified that he did not know the accused prior to the incident. He denied the suggestion that the accused was not serving liquor to the minor girl and asserted that it was wrong to suggest that the accused had been falsely implicated in the case. He maintained that it was wrong to suggest that the accused and the girl were merely drinking Pepsi. 5.6 PW6, Constable W/HC Soni No. 1502 was examined as PW6 and he stated that on 06/09/2022, Constable WHC Soni, No. 1502, West Police Station Inderpuri, was examined as PW5. She deposed that on 04/10/2018, she was posted as a Constable at Police Station Naraina. On that day, she took the victim, Uma Shah, to DDU Hospital for her medical examination.
During cross-examination by the defense, no questions were put forward by the defense counsel, and Constable WHC Soni's statement remained unchallenged. 5.7 PW7: W/SI Manoj Kumari was examined as PW7 and she stated that she stated that on 03.10.2018, she was posted as W/SI Digitally signed by Rahul Rahul Jain Date:
in Police Station Naraina. On that day, she received the present investigation which was recorded vide DD No. 15 and 18. The investigation was handed over to her for further action. Thereafter, she, along with HC Radhey Shyam, went to the spot, i.e., Naraina Club. On reaching the spot, they found that no one was there, but they were informed that the victim had been taken to DDU Hospital. W/SI Manoj Kumari, along with HC Radhey Shyam, then went to DDU Hospital, where she met ASI Jagmohan, who was also attending to the same DD. Upon seeing the victim, she found that the victim was not in a stable condition and appeared to be under the influence of alcohol. The mother of the victim also arrived at the hospital, and W/SI Manoj Kumari inquired about the situation once the victim regained her composure.
W/SI Manoj Kumari then learned that the person accompanying the victim had also been admitted to the same hospital. The statement of the victim was taken, which is already exhibited as Ex.PW2/A, bearing W/SI Manoj Kumari's signature at point B. A Tehrir was prepared and handed over to HC Radhey Shyam, which is now exhibited as Ex.PW7/A, bearing W/SI Manoj Kumari's signature at point A, for the registration of the FIR. After the registration of the FIR, HC Radhey Shyam returned to the spot with the original Tehrir and a copy of the FIR. The victim then identified the accused, who was also admitted to the hospital. After interrogation, the accused was arrested, which is already exhibited as Ex.PW1/A, bearing W/SI Manoj Kumari's signature at point B. The accused was personally searched, which is now exhibited as Ex.PW7/B, bearing W/SI Manoj Kumari's signature at point A. Thereafter, the medical examination of the accused was conducted, followed by the recording of the disclosure statement.
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W/SI Manoj Kumari further stated that the statement of the accused was recorded, which is now exhibited as Ex.PW7/C, bearing her signature at point A. A pointing-out memo of the occurrence on the instance of the accused was prepared, which is now exhibited as Ex.PW7/D, bearing her signature at point A. A statement under Section 164 CrPC of the victim was recorded.
Additionally, a site plan was also prepared on the instance of the complainant on 05.10.2018, which is already exhibited as Ex.PW1/B, bearing her signature at point B. The age proof of the victim had been obtained, and it was confirmed that she was a minor. All other necessary documents were prepared. The statement of the witnesses was recorded, and the charge sheet was prepared and filed in the Hon'ble Court. W/SI Manoj Kumari correctly identified the accused who was present in the court.
During the cross-examination, W/SI Manoj Kumari was questioned about the incident. She stated that the incident had occurred in the park near Naraina Club. No public witness had joined at the time of the preparation of the site plan. She denied the suggestion that she prepared all the documents in the Police Station and asserted that it was wrong to suggest that she was deposing falsely.
5.8 PW8, ASI Jagmohan was examined as PW8 and he stated that on 26/04/2023, ASI Jagmohan, No. 2686, West PS Kirti Nagar, was examined as PW8. He stated that on 03/10/2018, he was posted at Police Station Naraina and was on emergency duty from 8:00 AM to 8:00 PM. He was assigned DD No. 18A, and upon reaching the Naraina Club Main Gate, he learned that the PCR van had already taken two injured persons to the hospital.
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ASI Jagmohan proceeded to DDU Hospital, where he found the injured lady in an unconscious state. He informed the Duty Officer (DO), who sent W SI Manoj Kumar, W SI Manoj Kumari, and HC Radhey Shyam to the hospital. After informing them of the incident, he recorded his statement.
During cross-examination by the defense, ASI Jagmohan's testimony remained unchallenged, and no contradictions were brought to light.
5.9 PW9: HC Radhey Shyam was examined as PW 9 and he stated that on 03.10.2018, he was posted at Police Station Naraina as HC. On that day, DD No. 18A and 15A were assigned to W/SI Manoj Kumari. He, along with W/SI Manoj Kumari, went to the spot, i.e., Naraina Club Main Gate, where they came to know that the PCR van had already taken two injured persons to the hospital. Thereafter, they went to DDU Hospital, Hari Nagar.
At the hospital, they met ASI Jagmohan, who briefed them about the incident. W/SI Manoj Kumari recorded the statement of the victim and prepared the Tehrir. The Tehrir was handed over to him for the registration of the FIR. After registering the FIR, he came back to the DDU Hospital with the original Tehrir and a copy of the FIR, which he handed over to the IO. He then left for the Police Station, where the IO recorded his statement.
Arguments
6. Final arguments on behalf of rival parties were heard. I have heard Ld. APP for State and Ld. Counsel for the accused and carefully perused the records of the case.
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7. At the outset, I would like to reproduce the relevant provisions of law for which the accused has been charged.
Section 361 of the Indian Penal Code
(IPC): Kidnapping from Lawful
Guardianship "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."
Explanation: The words "lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other person.
Exception: This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.
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This section forms the basis for the
charge under Section 363 IPC, which
prescribes the punishment for
kidnapping as defined in Section 361
IPC. The prosecution needs to prove
that the accused's actions fall within the purview of this section to establish the offense of kidnapping from lawful guardianship.
Section 77 of the Juvenile Justice (Care and Protection of Children) Act, 2015:
Penalty for giving intoxicating liquor or narcotic drug or psychotropic substance to a child.
"Whoever gives, or causes to be given, to any child any intoxicating liquor or any narcotic drug or psychotropic substance, except on the order of a duly qualified medical practitioner, shall be punishable with rigorous imprisonment for a term which may extend to seven years and shall also be liable to a fine which may extend up to one lakh rupees."
These provisions outline the legal framework under which the accused has been charged and provide the statutory basis for the charges against him. The prosecution must establish that the Rahul Jain Digitally signed by accused's actions meet the criteria set out in these sections to secure a conviction.
8. It is trite in criminal jurisprudence that the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubt based on cogent, convincing, and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be allowed to the accused.
Discussion on Legal Principles and Case Laws
9. Section 361 IPC: Kidnapping from Lawful Guardianship Legal Principles:
Section 361 of the IPC criminalizes the act of taking or enticing a minor (under 16 years of age if male, and under 18 years of age if female) or a person of unsound mind, out of the keeping of their lawful guardian without the guardian's consent. The essence of the offense lies in the interference with the lawful guardian's right to control and custody of the minor or person of unsound mind.
The key elements that must be established for an offense under Section 361 IPC include:
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1. The victim must be a minor (under 16 years for males, under 18 years for females) or a person of unsound mind.
2. The accused must have taken or enticed the minor or person of unsound mind.
3. The act of taking or enticing must be out of the lawful guardian's keeping.
4. The act must be done without the consent of the lawful guardian.
Case Laws:
1. Vishwanath v. State of U.P., AIR 1960 SC 67:
The Supreme Court in this case held that the word "taking" implies an active role played by the accused in physically removing the minor from the custody of the lawful guardian. The Court emphasized that the intention to take away the minor without the guardian's consent is crucial to establishing the offense.
2. S. Varadarajan v. State of Madras, AIR 1965 SC 942:
In this case, the Supreme Court distinguished between "taking" and "enticing." The Court held that if a minor voluntarily leaves the lawful guardian's protection and joins the accused, without any inducement or active participation by the accused, it would not amount to "taking" or "enticing" under Section 361 IPC.
Rahul Jain Digitally signed by Rahul Jain "It must, however, be borne in mind that there is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstance can the two be regarded as meaning the same thing for the purposes of s. 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 guardian. 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. It would, however, be sufficient if the prosecution establishes that though 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 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 Digitally signed by Rahul Rahul Jain Date:
Jain 2024.08.14 house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to 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"."
3. State of Haryana v. Raja Ram, AIR 1973 SC 819:
The Supreme Court clarified that the consent of the minor is immaterial, and the consent of the guardian is what matters. If a person actively participates in the removal of the minor from the custody of the guardian, it constitutes kidnapping under Section 361 IPC.
"the consent of the minor who is taken or enticed is wholly immaterial : it is only the guardian's consent which takes the case out of its purview. Nor is it necessary that the taking or enticing must be shown to have, been by means of force, or fraud. Persuasion by the accused person which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardian would be sufficient to attract the section"
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10. Section 77 of the Juvenile Justice (Care and Protection of Children) Act, 2015: Giving Intoxicating Liquor or Drugs to a Child.
Legal Principles:
Section 77 of the Juvenile Justice Act criminalizes the act of giving or causing to be given any intoxicating liquor, narcotic drug, or psychotropic substance to a child, except on the order of a duly qualified medical practitioner. The rationale behind this provision is to protect children from the harmful effects of intoxicants and to ensure their physical and mental well-being.
The key elements that must be established for an offense under Section 77 include:
1. The victim must be a child (under 18 years of age).
2. The accused must have given or caused to be given any intoxicating liquor or narcotic drug or psychotropic substance to the child.
3. The act must be without the order of a duly qualified medical practitioner.
Case Laws:
1. State of Maharashtra v. Subhash N. Pandey, (2005) 7 SCC 501:Digitally signed
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Though this case predates the 2015 Act, it highlighted the severe implications of involving minors in activities related to intoxicants. The Court underscored the need for strict enforcement of laws designed to protect children from exposure to harmful substances.
2. Shyam Sundar v. State of Rajasthan, (1974) 3 SCC 767:
In this case, the Court observed that the mere act of giving intoxicants to a minor, even without any intent to harm, constitutes an offense. The objective of the legislation is preventive, aiming to shield children from any potential harm associated with intoxicants.
3. Dharambir v. State (NCT of Delhi), 2017 SCC OnLine Del 9826:
The Delhi High Court in this case reiterated the importance of the Juvenile Justice Act's provisions in safeguarding children from substances that could impair their development. The Court emphasized that strict liability is imposed on those who give intoxicants to children, irrespective of the child's willingness or consent.
"Section 77 of the Juvenile Justice Act imposes strict liability on individuals who give intoxicants to children, without the necessity of proving the child's consent or willingness. The primary objective is to protect children from Digitally signed by Rahul Rahul Jain Date:
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substances that can impair their physical and mental development."
The legal principles and case laws surrounding Section 361 IPC and Section 77 of the Juvenile Justice Act emphasize the importance of protecting minors from activities and influences that can harm their physical and mental well-being. Section 361 IPC focuses on the protection of minors from being taken away from lawful guardianship, while Section 77 of the Juvenile Justice Act aims to shield children from the dangers of intoxicating substances. The judiciary has consistently interpreted these provisions to prioritize the welfare and protection of minors, imposing strict liabilities on offenders.
Analysis of Evidence in Reference to Legal Provisions and Case Laws:
11. In the case of S. Varadarajan v. State of Madras, the Supreme Court held that the consent of a minor cannot be used as a defense if the minor is taken or enticed away from the lawful guardian. However, if the minor voluntarily leaves the guardian without any inducement or force by the accused, it may not amount to kidnapping. In the present case, PW2 (Uma Shah) testified that she voluntarily went to the park and took the drink offered by the accused. This raises a significant question regarding the applicability of Section 363 IPC. If Uma Shah left the guardianship on her own accord without any inducement from the accused, then the essential element of "taking or enticing" required under Section 361 IPC is not Digitally signed by Rahul Rahul Jain Date:
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satisfied. In the statement under Section 164 CrPC also, where the victim mentioned that the accused had refused to take her outside when she asked him to. Thus, there is no element of taking or enticing with respect to offence of Kidnapping.
12. However, in the present case, PW1, Smt. Lata Devi who is the mother of the minor victim, Uma Shah, who was about 16 years and some months at the time of the incident. The testimony of PW1 is crucial to establish the element of taking or enticing away as defined under Section 361 IPC.
During her examination-in-chief, PW1 indicated that her daughter had consumed liquor after visiting the park where she consumed a cold drink mixed with liquor. However, when confronted with her statement recorded under Section 161 CrPC, PW1 resiled from her earlier statement and denied any deliberate wrongdoing by the accused, thereby turning hostile. She had stated in her statement u/s 161 CrPC that accused had enticed her daughter. PW1's testimony regarding the alleged kidnapping under Section 361 IPC is weakened by her turning hostile. She denied in her testimony in court any deliberate act by the accused to entice her daughter, thus weakening the prosecution's case concerning the element of kidnapping. However, her initial statement under Section 161 CrPC cannot be be considered by the court given the bar under Section 162 Crpc.
13. A witness is termed hostile when they retract from their earlier statement made during the investigation or when they contradict the prosecution's case during their deposition in court. The law relating to the evidentiary value of a hostile witness's testimony is well-settled. The testimony of a hostile witness is not entirely rejected. Instead, it is subject to scrutiny and may be accepted to the extent that it is Rahul Jain Digitally signed by Rahul Jain corroborated by other evidence or is found credible on its own merits. But PW1 has completely turned hostile on the aspect of 'enticing or taking' and there is no other evidence produced on behalf of the prosecution to prove the same.
14. PW4 and PW5 did not depose anything related to enticing or taking of the minor PW2 as they had just seen PW2 consuming liqor in the park. PW2 herself has deposed the she voluntarily went to the park. Thus , there is no evidence to prove the 'enticing or taking ' as one cannot rely upon the testimony of hostile witness. Hence , Prosecution has failed to prove beyond reasonable doubt the offence u/s 361/363 IPC.
15. Section 77 of the Juvenile Justice (JJ) Act - Giving Intoxicating Liquor to a Child Section 77 of the Juvenile Justice Act is a strict liability offense that criminalizes the giving or causing a child to be given any intoxicating liquor or narcotic drug. Consent of the child is irrelevant under this provision, and the mere act of giving intoxicating liquor to a child constitutes the offense. The courts have consistently held that Section 77 is a strict liability offense where the consent of the child is irrelevant. The focus is solely on whether the intoxicating substance was given to the child by the accused. In this case, PW2 (Uma Shah) testified in court that she voluntarily took the glass and consumed the contents. However, in her statement under Section 164 CrPC, she mentioned that the accused offered her the liquor and even gave her to taste it. However, the discrepancy in her testimony as a hostile witness and the fact that she turned hostile during trial affects the reliability of her evidence. Her testimony given under section 164 Crpc cannot be relied upon by the court as it is well settled that statement Digitally signed by Rahul Rahul Jain Date:
Jain 2024.08.14
09:47:35
+0530
under Section 164 Crpc cannot be considered substantive piece of evidence especially in case where the witness has turned hostile.
16. When a witness turns hostile and contradicts their previous statement, the court must carefully scrutinize their testimony. The statement made under Section 164 CrPC, though not substantive evidence, can be used to corroborate other evidence on record. Courts have held that even if a witness turns hostile, the part of their testimony that supports the prosecution's case may still be relied upon if corroborated by other evidence.
17. The witness completely turned hostile on the aspect of giving of liqor which is the essence of the offence u/s 77 JJ Act. Further ,the testimony of PW1 (Smt. Lata Devi) largely consists of hearsay as she was informed about the incident by her daughter and the police. Her testimony does not carry much evidentiary value as she did not witness the incident herself. On the other hand, PW4 (Harish Kumar) did witness the minor consuming liquor but did not see the accused serving the liquor to her. This creates a gap in the prosecution's case, as the direct act of the accused giving liquor to the minor was not witnessed by him. However , PW 5 in his cross examination deposed that he saw accused serving liquor to the minor girl but his testimony was inconsistent. Once he deposed that when he reached the spot accused was serving liquor to the victim and next line he deposed that when he reached the spot both victim and accused were having glasses in their respective hands. Earlier when his cross examination started he had deposed that he had seen while the girl was consuming liquor and that victim was having a Pepsi bottle and glass in her hands. Thus, it cannot be said with certainty from the deposition that witness saw the accused serving liquor to the victim.
Digitally
signed by
Rahul Rahul Jain
Date:
Jain 2024.08.14
18. In summary, the evidence, when analyzed in light of legal provisions and relevant case laws, there is no evidence to prove the charge u/s 77 JJ Act. The prosecution has failed to prove its case beyond reasonable doubt.
19. Therefore, in ultimate analysis because of trial, there are no incriminating evidence against the accused. The prosecution has failed to establish a complete chain of circumstances and failed to prove its case beyond any reasonable doubt. Hence, accused Shiv Kumar is acquitted for the offences u/s 363 IPC and 77 JJ Act.
20. Let the convict be heard on the quantum of sentence.
File be consigned to record room after due compliance.
This judgment contains 26 pages and each page bears my signature. Digitally signed by Announced in open Rahul Rahul Jain Date:
Jain 2024.08.14
Court on 12.08.2024 09:47:49
+0530
(Rahul Jain)
JMFC-08, PHC, ND