Delhi District Court
State vs . Devender Kumar Soni @ Bunty on 29 June, 2022
IN THE COURT OF MS. ALKA SINGH
METROPOLITAN MAGISTRATE-08
(SOUTH-WEST), DWARKA COURTS, DELHI
DLSW020218192019
IN THE MATTER OF :
State Vs. Devender Kumar Soni @ Bunty
FIR No.342/09
PS : Uttam Nagar
U/s 363 IPC
Date of Institution : 13.08.2010
Date of Judgment : 29.06.2022
JUDGMENT
1. Serial No. of the case : 11073/2019
2. Name of the Complainant : Sh. Umesh Singh S/o Sh.
Samila Singh, R/o D-72,
Ramchander Enclave, Mohan
Garden, Uttam Nagar, Delhi.
3. Date of commission of offence : 26.10.2009
4. Name of accused person : Devender Kumar Soni @
Bunty S/o Sh. Krishan Kumar,
R/o WZ-C35, Roop Vihar,
Uttam Nagar, Delhi.
5. Offence charged : U/s 363 IPC
State Vs. Devender Kumar Soni @ Bunty
FIR No.342/09 PS Uttam Nagar
Judgment dated 29.06.2022. Page No. 1 of 13
Digitally signed
by ALKA
ALKA SINGH
SINGH Date:
2022.07.01
14:17:53 +0530
6. Plea of accused : Not guilty
7. Final Order : ACQUITTAL
BRIEF REASONS FOR ORDER:
1. The accused has been chargesheeted for committing offences punishable under Section 363 of Indian Penal Code (45 of 1860) (hereinafter referred to as "IPC").
2. It has been alleged by the prosecution that on 26.10.2009 at about 07.00 PM, one girl namely Rani, aged about 16½ years was kidnapped by accused Devender Kumar Soni. Thereafter, the statement of the complainant Umesh Singh was recorded upon which FIR was registered. Thereafter, on 06.11.2009 victim Rani herself came to the Police Station and her statement was recorded. She was then sent for her medical examination and the accused was arrested and later on released on bail.
3. After conclusion of investigation, the present chargesheet was filed against the accused u/s 363 IPC.
4. On receipt of chargesheet, Cognizance of offence was taken and accused was summoned to face trial. Copy of the chargesheet alongwith all annexures was supplied to the accused in terms of Section 207 Cr.P.C.
5. After giving opportunity to state as well as accused for making submissions on charge, a charge for offence u/s 363 IPC was framed State Vs. Devender Kumar Soni @ Bunty FIR No.342/09 PS Uttam Nagar Judgment dated 29.06.2022. Page No. 2 of 13 Digitally signed by ALKA ALKA SINGH SINGH Date:
2022.07.01 14:18:07 +0530 against the accused on 11.11.2011, to which he pleaded not guilty and claimed trial.
6. Prosecution examined six witnesses to prove its case.
7. Sh. Umesh Singh i.e, the complainant was examined as PW-1, who stated that on 26.10.2009 his daughter Rani aged 16 ½ years who was studying in a govt. school, left for her school at about 07.00 AM and that she would usually be back from school at about 01.00 PM. However, on that day she did not return, whereafter, inquiry were made in the neighborhood but all in vain. He further stated that accused Devender Kumar @ Bunty had troubled the school going children earlier also and hence he doubted that he might have kidnapped his daughter. That he thereafter approached the PS, filed a complaint regarding the same and his statement Ex. PW1/A was recorded. He further testified that after 2-3 days, he was informed by the police that they have apprehended the accused Devender Kumar and have also found his daughter Rani and thereafter he reached the PS where the accused and his daughter were present. It was further stated that recovery memo Ex. PW1/C was prepared in his presence and accused was also arrested vide memo Ex. PW1/B. The witness also identified the accused who was present in the court. It is also stated that statement of his daughter Rani was also recorded and accused was released on bail and his daughter was handed over to him. Photograph of his daughter Rani was Ex. PW1/D. Thereafter the witness was confronted with his statement U/s 161 Cr.P.C as per which he got the information regarding the recovery of his daughter State Vs. Devender Kumar Soni @ Bunty FIR No.342/09 PS Uttam Nagar Judgment dated 29.06.2022. Page No. 3 of 13 Digitally signed by ALKA ALKA SINGH SINGH Date:
2022.07.01 14:18:31 +0530 on 06.11.2009 but he replied that he does not remember the exact date due to lapse of time and that he is illiterate. He was not Cross- Examined by the defence despite opportunity.
8. As PW-2 the prosecution examined Smt. Poonam Devi, she deposed that she does not remember the exact date of incident but on the day of incidence her daughter did not come back from the school till 08.00 PM, who usually used to come at home at about 01.00 PM. That she informed her husband when he returned to home, whereafter they searched for their daughter in the neighborhood but she was not found. She stated that thereafter a complaint was given to the police by her husband and that she did not know about the accused earlier but came to know about that he was accompanying her daughter. She also stated that she does not remember the exact date when the information regarding recovery of her daughter was received by her. The witness correctly identified the accused who was present in the court and stated that she knew the accused from before as he was living in the neighborhood. She also sated that her statement was recorded by the police after her daughter was recovered. In her cross examination she stated that she had the knowledge that her daughter was acquinted with the accused but cannot say if her daughter herself went with the accused. She also stated that at that time her daughter was not mature and did not understand the social arrangements. She also stated that she is now married.
9. As PW-3 prosecution examined victim Rani, who stated that in the year 2009 she was studying in class 10th, in Teenwale School, State Vs. Devender Kumar Soni @ Bunty FIR No.342/09 PS Uttam Nagar Judgment dated 29.06.2022. Page No. 4 of 13 Digitally signed by ALKA ALKA SINGH SINGH Date:
2022.07.01 14:18:51 +0530 Mohan garden, Uttam Nagar and on hat day after the school she went to park Sec-13, Dwarka alongwith the accused, present in the court and correctly identified, and since she got late in the evening, her father lodged a missing complaint in the PS. Further, she could not return to her house in the evening and because her father had lodged a complaint due to fear of her father she did not return. She stated that she returned to her house after 10 days and till that day she remained with the accused at Basai Darapur at the house of the friend of the accused. She also confirmed that at the date of the incident she was 16 ½ years old. She also testified that for those 10 days she stayed with the accused on her own free will and no sexual relationship was made between them. She also clarified that she herself appeared before the PS Uttam Nagar and signed her recovery memo already Ex. PW1/C. In her cross examination that she went with the accused on her own free will and stayed with him and she was not pressurized by the accused. She also stated that she got married with the accused and is now living with him.
10. As PW4 Ct. Sh. Ram was examined who had taken the accused Devender to DDU Hospital on 06.11.2009 at the instance of the IO for his medical examination and after collecting the blood samples same was handed over to the IO. In his cross examination he stated that when he reached the DDU Hospital with the accused and no other police official was accompanying them.
11. W/HC Rajni was examined as PW5 who stated that on 06.11.2009, she was directed by the IO of the present case namely SI State Vs. Devender Kumar Soni @ Bunty FIR No.342/09 PS Uttam Nagar Judgment dated 29.06.2022. Page No. 5 of 13 Digitally signed ALKA by ALKA SINGH Date: SINGH 2022.07.01 14:19:01 +0530 Surat Singh for getting the medical examination of the victim conducted whereby she was taken to DDU for medical examination. He further deposed that after collecting her MLC she handed over it to IO and her statement was recorded. She was also not cross examined by the defence despite opportunity.
12. As PW6 Ret. SI Sh. Surat Singh was examined who sated that on 03.11.2009 when he was on emergency duty complainant Umesh came to the PS and stated that his daughter Rani aged about 16 ½ year went to the school today but did not return. He stated that complainant told him that he had made inquiry from the neighbor and he doubt that accused Devender Kumar had kidnapped her daughter Rani, upon which the statement of complainant was recorded and the present FIR was registered. He further deposed that complainant also submitted the certificate of Class 8th of the victim and also her school leaving certificate as an age proof, same were Ex. PW6/A (Colly). That on 06.11.2009 he apprehended the accused near Teenwala School and the victim was also found with him. He stated that he then informed the father of the victim and took victim to DDU Hospital with W/HC Reena for her medical examination. He further deposed that he also produced the victim before the court where her statement U/s 164 Cr.P.C. Ex. PW6/B was recorded and thereafter victim Rani was sent to Nari Niketan. He also stated that after interrogation accused Devender Kumar Soni was arrested and his medical examination was also conducted in the DDU Hospital. It was also stated by the IO that he collected the school leaving certificate of accused from his brother State Vs. Devender Kumar Soni @ Bunty FIR No.342/09 PS Uttam Nagar Judgment dated 29.06.2022. Page No. 6 of 13 Digitally signed by ALKA ALKA SINGH SINGH Date:
2022.07.01 14:19:13 +0530 Ex. PW6/B and also verified the age of the accused and also recorded the statement of the victim and the witnesses. He also correctly identified the accused who was present in the court. In his cross exmiantion he staeted that he does not remember, if any, DD No. entry was made or not regarding the incident and that he did not record the statement of any school officials. He also affirmed the suggestion of the defence that he had not mentioned the time of arrest in the arrest memo of the accused, as per which the place of arrest is shown to be police station Uttam Nagar. All the adverse suggestion of the defence counsel were denied by the witness.
13. Since, no other witness was examined by prosecution, hence, the PE was closed and statement of accused was recorded under Section 313 Cr.P.C. to allow him to explain the incriminating circumstances appearing in evidences against him wherein it was stated by the accused that he is innocent and has been falsely implicated in the present case and no victim herself came to him without any coercion and pressure and that they are both now married since 2015.
14. Since the accused chose not to lead any evidence in his defence, therefore, the matter was adjourned for final arguments.
15. Final arguments were thereafter heard on behalf of state as well as the accused.
16. It is submitted by Ld. LAC for accused that though the State Vs. Devender Kumar Soni @ Bunty FIR No.342/09 PS Uttam Nagar Judgment dated 29.06.2022. Page No. 7 of 13 Digitally signed by ALKA ALKA SINGH SINGH Date:
2022.07.01 14:19:27 +0530 complaint was given by the father of the victim regarding his missing daughter against the accused but mother of the victim had denied that her daughter was kidnapped by the accused. It was further argued by the Ld. LAC that victim has very clearly testified before the court that she herself went with the accused and also went to the police station on her own while the IO stated that he recovered the victim from Teenawala School. The Ld. LAC thus argued that no ingredient for committing the offence of kidnapping had been proved in the present case i.e. neither there was any enticement from the accused nor did he take away the victim from the lawful guardianship of her parents. Ld. LAC for accuse also filed the copy of three judgments in the support of his arguments.
17. Per contra, it was argued by the Ld. APP for state that victim was an under-age person has been proved and even though the victim went with the accused on her own and resided with him for 10 days but since she was a minor her consent was immaterial. He further contended that the IO has clearly stated that when the accused was apprehended from Tennawala school, victim was found with him. Ld. APP also rebutted the points of Ld. LAC for accused that there is noting on record which could show that accused was arrested from somewhere else as or the victim was not found with him. Moreover, accused was correctly identified by all the witnesses, thus the offence of kidnapping has been proved against the accused beyond reasonable doubt.
18. I have carefully considered the submissions made on behalf of State Vs. Devender Kumar Soni @ Bunty FIR No.342/09 PS Uttam Nagar Judgment dated 29.06.2022. Page No. 8 of 13 Digitally signed by ALKA ALKA SINGH SINGH Date:
2022.07.01 14:19:46 +0530 the parties and have perused the case file meticulously.
19. Now this court shall appreciate the evidences one by one in order to decide whether the prosecution has been successful in proving its case.
20. For convicting a person for an offence U/s 363 IPC, it has to be proved that a minor male under the age of 16 years or a female under the age of 18 years or any person of unsound mind must have been taken away or enticed out of the keeping of the lawful guardian without the consent of such guardian.
21. However, in the present case the element of enticement or taking away from the lawful guardianship is completely missing and it is not in dispute that the victim was neither called by the accused nor was she asked by the accused to go with him, leaving the protection of her guardians rather after her school she herself went to a park and met the accused, from where she went to the house of the friend of the accused and stayed there with the accused for 10 days and in all of her statements given either to the police or recorded before the court including her statement U/s 164 Cr.P.C., she has no where stated that she was in any way lured, enticed or asked by the accused to go away with him.
22. In addition to the above, the case of the prosecution also lacks the element of credibility, particularly in view of the fact that as per the charge-sheet victim Rani and accused Devender Kumar Soni State Vs. Devender Kumar Soni @ Bunty FIR No.342/09 PS Uttam Nagar Judgment dated 29.06.2022. Page No. 9 of 13 Digitally signed by ALKA ALKA SINGH Date: SINGH 2022.07.01 14:19:55 +0530 themselves went to the police station whereby the further investigation was carried out. It has also been clearly mentioned in the charge-sheet that victim Rani could not be traced by the police officers even after the search for her was conducted. Thus, in view of the said fact, it becomes ample clear that testimony of IO is not believable, infact it rather puts in question the entire investigation, if at all, carried out by him, as he deposed that he apprehended the accused from Teenawala School and also recovered the victim from the possession of the accused, which do not correspond with the facts of the charge-sheet as well as with the arrest memo Ex. PW1/B where the place of arrest has been shown to be PS Uttam Nagar and not Teenawala School. Hence, it appears that the IO has not carried out any investigation and instead just spieled out the facts, basing it on the facts that victim Rani was last seen at her school i.e. Teenawala School, Mohan Garden, Uttam Nagar and even while deposing the contrived story rustled up by him, he did not even bothered to ponder over or appraise the actuality of the circumstances. He even did not take into account the recovery memo Ex. PW1/C wherein it is written that victim Rani herself appeared in the police station Uttam Nagar. Thus, it shows the recklessness and heedless attitude of the IO and also throws light on the pseudo investigation carried out by him.
23. However, moving further on, let us enlighten ourselves with the axioms propounded by the Hon'ble Supreme Court of India in a much celebrated judgment of S. Varadrajan Vs State of Maharashtra, 1965 AIR (SC) 942, which judgment has also been relied upon by the Ld. State Vs. Devender Kumar Soni @ Bunty FIR No.342/09 PS Uttam Nagar Judgment dated 29.06.2022. Page No. 10 of 13 Digitally signed by ALKA ALKA SINGH Date: SINGH 2022.07.01 14:20:08 +0530 LAC for accused wherein it was held that "....... what we have to find out is whether the part played by appellant amounts to "taking" out of the keeping of the lawful guardian of Savitri. Interalia there is not a word in the deposition of Savitri from which an inference could be drawn that she left the house of K. Natrajan at the instance or even a suggestion of the appellant...... She willingly accompanied him. She was not a child of tender years who was unable to think for herself but, as already stated, was on the verge of attaining majority and was capable of knowing what was good and what was bad for her." It was further held that "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 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 actually left her guardian's 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 manor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to "taking". Thus, it was held that ".....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 State Vs. Devender Kumar Soni @ Bunty FIR No.342/09 PS Uttam Nagar Judgment dated 29.06.2022. Page No. 11 of 13 Digitally signed by ALKA ALKA SINGH Date:
SINGH 2022.07.01
14:20:36
+0530
what she was doing voluntarily joins the accused persons. In such a case we do not think that the accused can be said to have taking her away from the keeping of her lawful guardian. Something more has to do 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."
24. In a very recent judgment Anversinh Vs State of Gujrat (2021) 3 SCC 12, the Hon'ble Supreme Court of India further illustrated that "A perusal of section 361 IPC shows that it is necessary that there be an act of enticing or taking, in addition to establishing the child's minority and care/keep of a lawful guardian. Such enticement need not be direct or immediate in time and can also be through subtle actions like winning over the affection of a minor girl.
25. Thus, in view of the principles laid down by the Hon'ble Supreme Court of India, it is crystal clear there is nothing of the sort which would amount to either "enticement" or "taking away" of the victim rather the victim herself went to the accused after her school and did not return. Hence, in such a scenario accused cannot be held liable for the offence of kidnapping the minor girl Rani out of the keeping of her lawful guardianship.
26. Hence, in view of the aforesaid discussions and reasons, it can conclusively, be held that Prosecution has failed to prove its case against the accused beyond reasonable doubts and therefore, the State Vs. Devender Kumar Soni @ Bunty FIR No.342/09 PS Uttam Nagar Judgment dated 29.06.2022. Page No. 12 of 13 Digitally signed by ALKA ALKA SINGH SINGH Date:
2022.07.01 14:20:48 +0530 accused Devender Kumar Soni @ Bunty S/o Sh. Krishan Kumar is acquitted of charge u/s 363 IPC.
27. Ordered Accordingly.
Pronounced in open Court, on this Day of 29th June, 2022. This judgment consists of 13 signed pages.
ALKA Digitally signed by ALKA
SINGH
SINGH Date: 2022.07.01 14:21:18
+0530
(ALKA SINGH)
Metropolitan Magistrate-08/South-West Dwarka Courts: New Delhi State Vs. Devender Kumar Soni @ Bunty FIR No.342/09 PS Uttam Nagar Judgment dated 29.06.2022. Page No. 13 of 13