Delhi District Court
State vs . Waseem & Ors. on 3 November, 2022
IN THE COURT OF METROPOLITAN MAGISTRATE03, NORTHEAST
KARKARDOOMA COURTS, DELHI
Presided by Nitish Kumar Sharma
F.I.R. No. : 120/2012
Police Station: Khajuri Khas
State Vs. Waseem & Ors.
U/S 363/34 IPC
(a) Case ID number/CR No. : 465669/2015
(b) Date of commission of the offence : 12.04.2012
(c) The name of the complainant : Mohd. Sadre Alam S/o Mohd.
Tajmoor, R/o C430, Gali
No.29, Khajuri Khas, Karawal
Nagar, Delhi.
(d) The name of the accused, : (1) Waseem S/o Sh. Mohd.
parentage and residence Jamahir, R/o H.No. C431,
Gali No.29, C Block, Khajuri
Khas, Delhi
(2) Rashid S/o Mohd.
Mehboob Alam, R/o Near
Panchayat Bhawan, Tola
Dighaun, Town/Vill Dighaun
Anchal, Beldow, Khagaria,
Bihar.
(e) Charge framed : Under Section 363/34 of
Indian Penal Code
(f) The plea of the accused : Pleaded not guilty
(g) The final order : Acquittal.
(h) The date of such order : 03.11.2022
(i) State represented by : Sh. Arun Kumar Mavi, Ld. APP
for State.
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(j) Accused represented by : Sh. Parmanand Jaint, Ld. LAC
for both accused persons.
Challan was filed on: 28.04.2015
Final arguments were heard on: 03.11.2022
Judgment is announced on: 03.11.2022
JUDGMENT
FACTUAL BACKGROUND
1. The accused namely Waseem and Rashid here in this case were chargesheeted for the offence punishable under section 363/34 IPC.
2. Pithily put, the case of the prosecution is that on 12.04.2012 at unknown time from a street near H. No. C 430, gali no, 29, C Block, Khajuri Khas, Delhi, the accused persons in furtherance of their common intention kidnapped Sitara, aged about 13 years daughter of the complainant Mohd. Sadre Alam, from his lawful guardianship and therefore, the accused persons committed offence punishable under Section 363/34 IPC. Investigation was taken up and after completion of investigation, chargesheet was filed.
PROCEEDINGS BEFORE THE COURT
3. Pursuant to filing of the chargesheet, cognizance was taken and the accused persons were called upon to enter their trial and after FIR No.120/2012 State Vs. Waseem & Ors. PS: Khajuri Khas Page no. 2 of 12 their appearance, the copy of the relevant documents were furnished to the accused persons. Upon hearing both sides and on perusal of the case record, the charge was framed u/s 363/34 IPC and was read over and explained to the accused persons to which accused persons pleaded not guilty and claimed to be tried.
4. The only point for determination in the present case is whether accused kidnapped by taking/enticing the daughter of complainant namely Mohd. Sadre Alam from his lawful guardianship without his consent?
5. In order to prove the guilt of accused for the offence punishable under Section 363/34 IPC, prosecution was duty bound to fulfil the requirements of 'kidnapping' as defined under Section 361 IPC and same runs as under: "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."
Taking or enticing away a minor out of keeping of lawful guardian is an essential ingredient of the offence of kidnapping.
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6. In case of Parkash v. State of Haryana, AIR 2004, SC 277, it was held:
6. "The object of this section seems as much to protect the minor children from being seduced for improper purposes as to protect the rights and privileges of guardians having the lawful charge or custody of their minor wards. The gravamen of this offence lies in the taking or enticing of a minor under the ages 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 the lawful guardian of such minor" in Section 361, are significant. The use of the word "Keeping" in the context connotes the idea of charge, protection, maintenance and control; further the guardian's charge and control appears to be compatible with the independence of action and movement in the minor, the guardian's protection and control of the minor being available, whenever necessity arises. On plain reading of this section 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.
7. "In State of Haryana v. Raja Ram (1973 (1) SCC 544) English decisions were noticed by this Court for the purpose of illustrating the scope of the protection of minor children and of the sacred right of their parents and guardians to the possession of minor children under the English Law. The decisions noticed were Reg v. Job Timmins (169 English Reports 1260); Reg v.
Handley and another, (175 English Reports 890) FIR No.120/2012 State Vs. Waseem & Ors. PS: Khajuri Khas Page no. 4 of 12 and Reg v. Robb (176 English Reports 466). In the first case Job Timmins was convicted of an indictment framed upon 9 Geo. IV, Clause 31,Section 20 for taking an unmarried girl under sixteen out of the possession of her father, and against his will. It was observed by Erle, C. J. that the statute was passed for the protection of parents and for preventing unmarried girls from being taken out of possession of their parents against their will. Limiting the judgment to the facts of that case it was said that no deception or forwardness on the part of the girl in such cases could prevent the person taking her away from being guilty of the offence in question. The second decision is authority for the view that in order to constitute an offence under 9 Geo. IV, Clause 31, Section 20 it is sufficient if by moral force a willingness on the part of the girl to go away with the prisoner is created; but if her going away with the prisoner is entirely voluntary, no offence is committed. The last case was of a conviction under the Statute (24 and 25 Vict. Clause 100, Section
55). There inducement by previous promise or persuasion was held sufficient to bring the case within the mischief of the State. In the English Statutes the expression used was "take out of the possession" and not "out of the keeping" as used in Section 361, I. P. C. But that expression was construed in the English decisions not to require actual manual possession. It was enough if at the time of the taking the girl continued under the care, charge and control of the parent : See Reg v. Manketelow (6 Cox Criminal Cases 143). These decisions were held to confirm the view that Section 361 is designed also to protect the sacred right of the guardians with respect to their minor wards.
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8. "The position was again reiterated in Thakorlal D. Vadgama v. The State of Gujarat(AIR 1973 SC 2313) wherein it was, inter alia, observed as follows : "The expression used in Section 361, I.P.C. is "whoever takes or entices any minor". The word "takes" does not necessarily connote taking by force and it is not confined only to use of force, actual or constructive. This word merely means, "to cause to go," "to escort" or "to get into possession". No doubt it does mean physical taking, but not necessarily by use of force or fraud. The word "entice" seems to involve the idea of inducement or allurement by giving rise to hope or desire in the other. This can take many forms, difficult to visualise and describe exhaustively; some of them may be quite subtle, depending for their success on the mental state of the person at the time when the inducement is intended to operate. This may work immediately or it may create continuous and gradual but imperceptible impression culminating after some time, in achieving its ultimate purposes of successful inducement. The two words "takes" and "entices", as used in Section 361, I.P.C. are in our opinion, intended to be read together so that each takes to some extent its colour and content from the other. The statutory language suggests that if the minor leaves her parental home completely uninfluenced by any promise, offer or inducement emanating from the guilty party, then the latter cannot be considered to have committed the offence as defined in Section 361, I. P. C."
7. To discharge its burden to prove its case, prosecution called the victim & complainant first. PW1 Ms. Sitara is the daughter of Sh. Sadre Alam who deposed that on 12.04.2012, at about 10:00 PM to 10:30 PM she alongwith her Mausi (Khala) were going to doctor at Khajoori Khas. Her Khala told her to go to some side wali gali to reach FIR No.120/2012 State Vs. Waseem & Ors. PS: Khajuri Khas Page no. 6 of 12 the doctor. While going to the gali, they met with accused Waseem and her khala told her that they would go with him to the doctor. As it was late night she became afraid for her security and she told Waseem to leave her at Ghaziabad. At that time her Khala left her there. Thereafter, she alongwith accused Waseem went to Ghaziabad and on reaching there she called her mother and she came there and took her back. Accused Waseem had not done anything with her and she accompanied him on her own wish. When she returned back to her home she came to know that her father had already lodged a complaint against the accused. Her statement was recorded before the Ld. MM which is marked as Mark X. Police had inquired about the incident from her and recorded her statement after the registration of FIR.
Ld. APP for State sought permission to crossexamine the witness. During crossexamination, the witness denied that she had stated to the police in her statement MarkY that when they met with accused Waseem then he covered her mouth & dragged her in the gali where there was no light. She denied that accused Waseem took her forcibly at Ghaziabad. The attention of the witness was drawn towards the accused Rashid on which witness submits that she can not identify accused Rashid and also could not tell whether accused Rashid was accompanied with accused Waseem at the time of incident or not. She denied that she was deliberately not identified accused Rashid despite she had mentioned in her statement under Section 164 Cr. PC that accused Waseem was accompanied with some other person.
During crossexamination by Ld. defence counsel, the witness stated that she accompanied with accused Waseem voluntarily and on her own wish and accused did not put any pressure to proceed to FIR No.120/2012 State Vs. Waseem & Ors. PS: Khajuri Khas Page no. 7 of 12 Ghaziabad. She stated that accused Waseem had not pressurized her to do anything through out the journey to Ghaziabad. She returned back to her home at her own risk.
8. PW2 Mohd. Sadre Alam deposed that on 12.04.2012 at about 08.00 p.m., his daughter namely Sitara aged about 13 years had gone to take medicine from medical store but she did not return home nor she had informed them as to where she had gone. He had made search for her daughter but she was not found. On 13.04.2012, he went to PS Khajuri Khas and gave his complaint regarding missing of his daughter namely Sitara. He did not know who had taken his daughter.
Ld. APP for State sought permission to crossexamine the witness. During crossexamination, the witness stated that accused Wasim was shown to the witness and was asked whether he was the same person who had taken his daughter on which witness stated that he cannot tell about the accused. He denied that suggestions that accused Wasim had taken away his daughter forcefully without his permission or that he had settled the matter outside the Court with the accused, therefore, the witness deposed falsely on the point of identification of the accused to save him from the present case.
During crossexamination by Ld. defence counsel, the witness stated that when he went to lodge FIR regarding missing of his daughter, he did not know who had taken his daughter. He did not know about accused Rashid and accused Wasim.
9. PW3 Retd. SI Dharam Singh has deposed that on 13.04.2012, the investigation of the present case was marked to him. He FIR No.120/2012 State Vs. Waseem & Ors. PS: Khajuri Khas Page no. 8 of 12 further deposed that on 18.04.2012, the mother of the victim came to the PS with the victim itself and on 19.04.2012, he got the statement of victim recorded u/s 164 Cr.PC. He further deposed that he arrested you the accused Waseem at the instance of Amina Begum.
During crossexamination by Ld. defence counsel, the witness stated that he did not know if there is no tehrir in the file. He had come to know that the complainant had got registered the case with the duty officer. He did not remember the name of the duty officer. He did not remember as to whom the information of arrest of accused Wasim was given. He denied the suggestions that no complaint was given in the PS by the complainant. He voluntarily stated that investigation was marked to him after registration of FIR. He denied that he had falsely implicated the accused persons in the present matter or that all documentation work was done while sitting in PS or that the present case has been registered falsely against the accused persons or that he had not conducted fair investigation in the present case.
10. PW4 Inspector Anuj deposed that accused Rashid surrendered before the court on 18.12.2022 and he arrested accused Rashid. He deposed that he had recorded disclosure statement of accused Rashid.
11. PW5 Inspector Satender Singh deposed that the investigation of the case was assigned to him on 06.03.2013. He deposed that he prepared the chargesheet.
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12. PW2 is the complainant/father of victim who had lodged missing report of his daughter. In his testimony before the court, PW2 stated that he did not know as to who had taken his daughter. The witness denied the suggestion that accused had kidnapped her daughter. PW Amina Khatoon remained unserved during trial and was accordingly dropped from list of witnesses. The remaining witnesses were not examined being formal in nature. Accordingly, PE was closed.
13. I have heard the submissions from both sides and meticulously perused the record.
14. It is cardinal principle of criminal law that an accused is presumed innocent until he is held guilty by a Court of competent jurisdiction. The onus to prove the case against the accused persons lies upon the prosecution which has to prove its case beyond reasonable doubt.
15. It is to be noted that complainant & victim have not supported prosecution. PW Amina Khatoon remained unserved. However, perusal of statement of Amina Khatoon u/s 161 Cr.PC reveals that victim had told her that accused Waseem had taken her and had left her in Ghaziabad. Thus, the said witness was only hearsay and not eyewitness. As per testimony of PW1, she was told by her Khala that they would go to hospital with Waseem and upon this, she accompanied Waseem on her own who left her at Ghaziabad.
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16. The entire case of the prosecution was dependent upon the sole alleged testimony of victim and complainant as there was no eye witness to the incident and no circumstantial evidence(s) were brought on record by the prosecution. The complainant and the victim denied that victim was kidnapped by accused. It is not the case of prosecution that victim was found from /with accused rather the victim is stated to have gone to her mother on her own and from there she went to PS. There is no other circumstantial evidence as well on record.
17. The prosecution could not bring on record any material to show enticement or overt act for taking the victim by the accused. The complainant namely PW1 and PW2 have not supported the prosecution and PW1 & PW2 had categorically stated that accused did not kidnap her and she went on her own. There is nothing on record to suggest any sort of inducement at the hand of accused.
18. As the complainant and victim herself have stated that accused did not kidnap victim and as there is no other evidence on record to suggest that victim was enticed by accused, it has to be held that prosecution failed to discharge the onus placed upon it.
19. It has been observed by the Hon'ble Punjab & Haryana High Court in a case of "Sadhu Singh Vs. State of Punjab 1997(3) Crime 55" as under: "In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubt. It is for the prosecution to travel the entire distance from may FIR No.120/2012 State Vs. Waseem & Ors. PS: Khajuri Khas Page no. 11 of 12 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."
20. The complainant/main witness i.e. PW1 and PW2 have not supported the prosecution. There is no other eyewitness to this case and there is no circumstantial evidence on record to even hint slightly regarding any enticement at the hand of the accused. Thus, there is nothing on record to prove the charge u/s 363/34 of IPC against accused. The prosecution has failed to prove its case even remotely against the accused in view of little incriminating evidence brought on record by it. Accordingly, the accused persons namely Waseem and Rashid are acquitted for the offences punishable u/s 363/34 IPC.
Now, file be consigned to Record Room.
Digitally signed by NITISHAnnounced in the open court NITISH Date:
2022.11.03
on 03.11.2022 16:43:26 +0530
(Nitish Kumar Sharma)
Metropolitan Magistrate03,
NorthEast, Karkardooma Courts, Delhi
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