Delhi District Court
Sc No. 28276/2016 State vs . Sandeep Kumar Page No. 1Of 5 on 29 August, 2017
IN THE COURT OF SH. VIMAL KUMAR YADAV
SP JUDGE (POCSO ACT)( CENTRAL): DELHI
SC No. 119/2015
New Case No. 28276/2016
ID No.: 02401R0459612015
FIR No. 75/2012
PS : Prasad Nagar
U/ss: 363/366/376 IPC
State
Versus
Sandeep Kumar
S/o. Late Ashok Kumar
R/o. B231, J.J. Colony,
Pandav Nagar, Delhi. .......Accused
Date of Institution : 20.08.2015
Date of judgment reserved on : 28.08.2017
Date of judgment : 29.08.2017
J U D G M E N T
1.A missing report was lodged by one Ram Charan on 14.02.2012 stating therein that his daughter namely 'P' (since she is the victim of molestation, her identity is withheld in order to conceal her identity and hereinafter she will be referred as 'the complainant/victim'), aged about 14 years and giving other descriptions, vanished from his house at about 07.00 P.M. The efforts to locate the child could not yield any result, therefore the matter was reported to the police pursuant to the same, FIR bearing No. 75 of 2012 was registered by the police station Prasad Nagar under section 363 IPC. A number of Investigating Officers were given the investigation, but no breakthrough came till 23.04.2013 that too when the victim alongwith the accused herein i.e. Sandeep Kumar apprehended by the police rather, as the record reveals SC No. 28276/2016 State Vs. Sandeep Kumar page no. 1of 5 that in the intervening time of about 14 months, the victim 'P' had not only married the accused Sandeep Kumar, but became mother of a child and the victim had herself gone to her house and informed about all these developments to her parents. The mother of the victim took her to the police station in order to wind up the FIR which came to be registered at the time when missing report of the victim was lodged. The police acted upon the FIR and the other formalities regarding the investigation i.e. arrest of the accused, medical of the victim, recording of her statement under section 164 Cr.P.C. etc. were carried out and thereafter the charge sheet was filed under sections 363/366/376 IPC.
2. Accused, after compliance of Section 207 Cr.P.C., was charged under the aforesaid sections as a prima facie case was found. The charge was framed on 06.04.2016 and the same was read over and explained to the accused in Hindi, to which he pleaded not guilty and claimed trial.
3. Of the 16 witnesses arrayed in the list of witnesses, to drive home its case by the prosecution, after examining of 6, the evidence was closed after a formal and limited statement of the Investigating Officer W/SubInspector Prabha visavis the availability of the victim. Whatever little evidence came on record was put to the accused which he refuted and stated that he had only helped the victim and arranged a tenanted accommodation for her as the victim did not want to live with her family on account of the frequent beatings given to her by her mother. He did not opt to lead evidence in his defence.
4. It is pertinent to mention here that in the intervening period i.e. from the registration of the FIR in 2012 till 11.08.2017, a lot of developments took place, the notable amongst them are that the victim became mother of a female child, she was kept in the shelter home and from there she escaped, when she was taken to the hospital. An FIR was registered in this context but there is no trace of the victim as SC No. 28276/2016 State Vs. Sandeep Kumar page no. 2of 5 has come in the statement of the Investigating Officer, who was entrusted with the responsibility to trace out the victim and produce her for recording of her statement. Counsel for the accused has contended that there is no evidence against the accused that he either kidnapped the victim or committed anything wrong with her, therefore notwithstanding the contentions raised on behalf of the prosecution that evidence qua the accused is there, the accused deserves to be acquitted of the charges.
5. The mainstray of the prosecution's case was the victim herself as she was the person who could have really told as to what had happened with her whether she was kidnapped or not and if kidnapped, then by whom and similarly whether she was subjected to rape or not by the accused or anybody else. In the absence of the victim and her testimony, the prosecution's case becomes very weak to the extent that it cannot be revived in view of what has come on record from the mouth of W/SubInspector Prabha. She has categorically stated that an untrace charge sheet has been filed in respect of FIR bearing No. 192 of 2013, which was registered at police station Hari Nagar in respect of the victim missing from the hospital. The relevant documents have also been placed on record by the Investigating Officer which are Ex.CW1/A, Ex.CW1/B and Ex.CW1/C and the copy of the FIR bearing No. 192 of 2013 was marked as MarkXY. It is, thus, evident that the possibility of securing the presence of the victim is nearly impossible. In these circumstances, no option except closing the evidence was there. The futility of recording the remaining witnesses is writ large as it was pointless to continue with the case.
6. The other witnesses arrayed by the prosecution are not potent enough to bring on record the requisite ingredients of the offences with which the accused has been charged. All the public witnesses, other than the victim, have been examined and even with their cumulative testimony i.e. of the mother of the victim SC No. 28276/2016 State Vs. Sandeep Kumar page no. 3of 5 examined as PW3 and the neighbours, who had seen the victim and accused living together, examined as PW5 and PW6, does not give any reason to infer that the victim was kidnapped and was kidnapped for the purpose of compelling her for marriage or for seducing her although testimony of PW5 and PW6 is indicative of the fact that the accused and the victim were living as husband and wife at some point of time in the jhuggi at Jahangir Puri. However, the testimony of the mother of the victim reflects that accused and the victim had married and the marriage was blessed by the parents of the victim too. However, these are only the circumstances, but the possibility of what has been contended by the Counsel for the accused that the victim herself joined the accused cannot be ruled out.
7. In a criminal trial, the guilt of the accused is required to be proved beyond all reasonable doubts cogently and convincingly, which the prosecution is unable to prove as element various possibilities exist if the testimony is analyzed in its totality. While dealing with the aspect of kidnapping, it was observed that there should be an active allurement, enticement or other such similar act which is attributable to the accused in case where a minor victim has been taken out of the guardianship of her parents. However, if the victim had herself gone, then such movement would not fall into the scope and ambit of 'taking away' or 'enticing', which are the two important requirements of Section 363 IPC. Section 366 IPC is a species of the offence of kidnapping and in case if necessary ingredients of Section 363 IPC constituting, the offence of kidnapping are amiss then in that case Section 366 IPC also goes out of contention. Reference in this context can be made to S. Vardarajan v. State of Madras, AIR 1965 SC 942 and the relevant extract of the judgments is as below:
"9. 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 SC No. 28276/2016 State Vs. Sandeep Kumar page no. 4of 5 synonymous though we would like to guard ourselves from laying down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of Section 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused persons. In such a case we do not thing 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 persons or an active participation by him in the formation of the intentions of the minor to leave the house of the guardian."
8. So far as the offence of rape is concerned and for that matter for the kidnapping also, it was the victim who could have told as to what actually happened with her. In the absence of any such testimony, due to the reason of the absence of nonavailability of victim, no evidence is there therefore in such circumstances, the accused cannot be held guilty of either of the offences with which he has been charged. As such, accused Sandeep Kumar is acquitted of the charge. His bail bonds and surety bonds stand discharged after compliance of section 437A Cr.P.C. File be consigned to Record Room.
Announced in the open Court
on this 29th day of August, 2017 (VIMAL KUMAR YADAV)
SPECIAL JUDGE (POCSO
ACT)/ASJ01 CENTRAL
/THC, DELHI
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