Delhi District Court
State vs . on 8 April, 2021
IN THE COURT OF METROPOLITAN MAGISTRATE-07,
SOUTH-WEST, DWARKA COURTS,
NEW DELHI
Presided over by- Sh. Dev Chaudhary, DJS
Cr. Case No. -: 2942/2017
Case ID No. -: DLSW020092432017
FIR No. -: 392/2016
Police Station -: Chhawla
Section(s) -: 363 IPC
In the matter of -:
STATE
VS.
ROHIT
S/o Naresh Kumar,
R/o V.P.O. Jhatikara
Najafgarh, New Delhi.
.... Accused
1. Name of Complainant : Rajvir
2. Name of Accused : Rohit
Offence complained of or Section 363 of Indian
3. :
proved Penal Code, 1860.
4. Plea of Accused : Not Guilty
5. Date of commission of offence : 26.10.2016
6. Date of Filing of case : 17.04.2017
7. Date of Reserving Order : 19.03.2021
8. Date of Pronouncement : 08.04.2021
9. Final Order : Acquitted
Argued by -: Sh. Abhishek Pandey, Ld. Substitute APP for the State.
Sh. Mithan Lal, Ld. counsel for the accused.
Digitally signed by DEV CHAUDHARYDEV CHAUDHARY Date:
2021.04.08 17:36:13 +0530 Cr. Case No. 2942/2017 STATE VS. ROHIT Page 1 of 14 BRIEF STATEMENT OF REASONS FOR THE DECISION -:
FACTUAL MATRIX-
1. The case of the prosecution is that on 26.10.2016, a minor child Komal was kidnapped from the lawful guardianship of her parents by the accused Rohit. Komal had completed her 12th standard at the time of the incident and was preparing for admission in B.Com course. It is alleged that the father of the victim, namely Rajvir lodged a police complaint that on the date of incident, his daughter Komal had left the house at around 2 pm by stating that she is going to the fields. However, she did not return. The father of the victim stated that he had suspicion on Rohit. Later on, the victim was recovered from the custody of the accused. As such, it is alleged that the accused committed offence under Section 363 of the Indian Penal Code, 1860 (hereinafter, "IPC"), for which FIR No. 392/2016 was registered at P.S. Chhawla on 26.10.2016.
INVESTIGATION AND APPEARANCE OF ACCUSED-
2. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, charge-sheet against the accused Rohit was filed. After taking cognizance of the offence under Section 363 of IPC, the accused was summoned to face trial vide order dated 22.08.2017.
3. On appearance of the accused, a copy of charge-sheet was supplied to him in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). After finding a prima facie case against the accused, charge for offence under Section 363 IPC Cr. Case No. 2942/2017 STATE VS. ROHIT Page 2 of 14 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2021.04.08 17:36:19 +0530 was framed against the accused. The accused pleaded not guilty to the aforesaid charge and claimed trial.
PROSECUTION EVIDENCE-
4. During the trial, the prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt-:
ORAL EVIDENCE PW 1 : Rajbir (Father of victim) PW 2 : Meena Devi (Mother of victim) PW 3 : Ct. Ashish (Proves investigation) PW 4 : Komal (Victim) PW 5 : HC Baljeet Singh (Duty officer) PW 6 : SI Anuj Yadav (Second IO) PW 7 : Dr. Uttam Kondle (Medical Examiner) PW 8 : SI Shambu Sha (First IO) DOCUMENTARY EVIDENCE Ex. PW1/A : Police complaint Ex. PW3/A : Recovery memo of victim Ex. PW3/B : Arrest memo Ex. PW3/C : Personal search memo Ex. PW4/A : S. 164 CrPC statement of victim Ex. PW5/A : FIR Ex. PW5/B : Endorsement on rukka Ex. PW5/C : S. 65B, Evidence Act certificate Ex. PW5/D : DD no. 41A Ex. PW6/A : Age memo of accused Ex. PW7/A : MLC of victim Ex. PW8/A : Rukka
5. Rajvir (PW1) is the complainant in the case. He deposed on oath that he did not remember the exact date and month of the incident but guessed it to be 21.11.2016. He stated that at the time of incident, his daughter Komal was below 18 years and had passed class 12th. At around 6:00-6:30 pm on the date of incident, his wife telephonically informed him that his daughter had not returned Cr. Case No. 2942/2017 STATE VS. ROHIT Page 3 of 14 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2021.04.08 17:36:25 +0530 home, after leaving the home around 2:00 pm. Thereafter, he lodged a police complaint. He stated that he did not know Rohit, against whom he had made allegations. He stated that his daughter returned the next morning and told him that she had gone to a friend's house. 5.1. During his cross examination by the Ld. APP for the State, Rajvir (PW1) stated that the incident had occurred on 26.10.2016 and his daughter was recovered on 23.01.2017. He did not identify the accused in Court and stated that he had mentioned the name of the accused as the accused used to study with his daughter in the same class. On being cross-examined by the ld. counsel for the accused, the witness did not know the age of his daughter when she was admitted to class 1 in school.
6. Komal (PW4) is the victim in the present case. She deposed that her date of birth was 10.10.1998. She stated that she knew accused Rohit since her school days as they used to study tuitions together. She stated that she went with the accused to different places and the same was done after leaving the custody of her parents voluntarily. The police had traced them in Punjab and produced her before the Metropolitan Magistrate for recording of her statement under Section 164 CrPC. She deposed that she told the Magistrate the same story. She identified the accused in court. 6.1. In her cross examination by the Ld. APP for the State, Komal (PW4) denied the suggestions that the accused enticed her to leave the custody of her parents. She stated that she had left the house on her own. She denied that she was a minor on the date of incident.
It was deposed by the witness that her date of birth, claimed by the police to be of 25.12.1998, is wrong.
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2021.04.08 17:36:29 +0530
7. Meena Devi (PW2) is the mother of the minor. She deposed she did not know the date, month and year of the incident.
She stated that her daughter had gone to the fields on the date of incident and did not return till evening. At the time of the incident, the age of her daughter was below 18. She testified that her daughter was recovered after three months.
7.1. During her cross-examination, Meena Devi (PW2) did not identify the accused. She admitted going to Punjab to recover her daughter. She stated that she did not see the person at the time of recovery.
8. SI Anuj Yadav (PW6) is the second IO in this case. He deposed on oath that he was marked the investigation in the present case on 29.10.2016. He obtained NBWs against the accused and then on 21.01.2017, he came to know that the accused Rohit is residing in Village Govindwal, District Tarn Taran, Punjab. He reached there alongwith the mother of the victim (PW2) and found the accused alongwith the victim. He proved on record the arrest memo, recovery memo of child etc. 8.1. During his cross-examination, SI Anuj Yadav (PW6) admitted that the minor had informed him that she had gone with the accused on her own will.
9. SI Shambu Shah (PW8) is the first IO in the present case. He deposed on oath that on the date of incident, i.e. 26.10.2016, he received information vide DD No. 41A regarding the kidnapping of a girl. He reached the house of the victim and recorded statement of the complainant (PW1). Thereafter, he prepared the rukka and sent it to the police station through Ct. Sunil Kumar. After registration of Cr. Case No. 2942/2017 STATE VS. ROHIT Page 5 of 14 Digitally signed by DEV CHAUDHARY DEV CHAUDHARY Date:
2021.04.08 17:36:36 +0530 FIR, Ct. Sunil came back and further investigation was carried on. Efforts were made to search the accused but he was not found. No cross-examination of the said witness was done by the defence.
10. Rest of the prosecution witnesses are formal in nature. Apart from this oral evidence, the prosecution has relied upon the documentary evidence referred to in the table above.
STATEMENT OF ACCUSED AND DEFENCE EVIDENCE-
11. Thereafter, before the start of defence evidence, in order to allow the accused to personally explain the incriminating circumstances appearing in evidence against him, the statement of the accused was recorded without oath under Section 281 read with Section 313 CrPC. In reply, accused Rohit stated that he is innocent and has been falsely implicated in the present case. He further stated, as under-:
"Victim Komal left her home with me on her own will without any pressure from me as she was disturbed from her house. Victim had threatened to commit suicide if I did not go with her. I felt that victim is in tension and she might commit suicide. Hence, I advised her not to take any adverse step. I had not enticed her and I only wanted to help her. Further, victim Komal had told her parents on her 18th birthday, i.e. 10.10.2016 that she wanted to marry me but her parents were against her wish. Hence, she was disturbed."
12. Thereafter, he stated that he wished to lead defence evidence. The defence led the following oral and documentary evidence in the defence evidence -:
ORAL EVIDENCE DW 1 : Punit DOCUMENTARY EVIDENCE NONE
13. Punit (DW1) has testified in favour of the accused by stating that Komal was his school friend and used to attend tuitions Cr. Case No. 2942/2017 STATE VS. ROHIT Page 6 of 14 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2021.04.08 17:36:47 +0530 with him. Her birthday was celebrated on 10.10.2016 at her home. She met him at the tuition on 26.10.2016. As she appeared agitated, he called accused Rohit. It was revealed that Komal had talked to her family about marrying Rohit. However, they had refused and Komal told Rohit that she required help as her family was troubling her. She also said she will commit suicide. Komal then went away from the spot and Rohit went after her.
13.1. During his cross-examination, Punit (DW1) stated that he attended the birthday party of Komal alongwith accused Rohit and 5-6 friends. Komal told Rohit that she will commit suicide in the presence of the witness. Further, he deposed that he went to his home thereafter and did not know where Komal and Rohit went.
ARGUMENTS-
14. I have heard the ld. APP for the State and ld. counsel for the accused at length. I have also given my thoughtful consideration to the material appearing on record.
15. It has been argued by the ld. APP for the State that all the ingredients of the offence are fulfilled in the present case. The victim was a minor on the date of the incident as per documentary evidence and she was found in the custody of the accused. He has argued that the it was due to the enticement of the accused that the victim went with him. As such, it is prayed that the accused be punished for the said offence.
16. Per contra, ld. counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt. He has argued that the whole case is fabricated, Cr. Case No. 2942/2017 STATE VS. ROHIT Page 7 of 14 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2021.04.08 17:36:53 +0530 which is evident from the evidence of the prosecution itself. It is submitted that the witnesses of the prosecution have turned hostile and the critical ingredient, i.e. the age of the victim, is not proved by the prosecution. It is argued that the there is no iota of evidence against the accused as there was no enticement or taking by him. The victim had voluntarily left her house. As such, it is prayed that the accused be acquitted for the said offence.
INGREDIENTS OF THE OFFENCE-
17. Before dwelling into the facts of the present case, it would be apposite to discuss the legal standards required to be met. In order to establish the offence of kidnapping, the prosecution must fulfill all the essential ingredients of the offence. Section 361 of the IPC prescribes the offence of kidnapping from lawful guardianship. As per the provision, any person taking or enticing the minor from the keeping of the lawful guardian, without the consent of the guardian, commits the offence of kidnapping, punishable under Section 363 of IPC. Thus, it is indispensable for the prosecution to prove the following -:
a. "Taking" or "enticing" by the accused, b. Minority of the person kidnapped, c. Such kidnapping should be from the keeping of the guardian, d. No consent of the lawful guardian.
18. In criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. Ld. counsel has raised many contentions to prove that the case of the prosecution is doubtful.
Cr. Case No. 2942/2017 STATE VS. ROHIT Page 8 of 14 signed
Digitally
by DEV
DEV CHAUDHARY
CHAUDHARY Date:
2021.04.08
17:36:58 +0530
PROOF OF MINORITY-
19. At the outset, the prosecution was required to prove that the victim was a minor on the date of kidnapping, i.e. 26.10.2016. The prosecution had annexed the C.B.S.E. certificate of one Komal Yadav with the charge-sheet. However, the said certificate was neither tendered into evidence nor proved in any other manner by the prosecution. The only evidence is the oral testimony of the father of the victim, who testified that his daughter was not major on the date of incident. However, when cross-examined, this witness was unable to tell the age of his daughter when she was admitted to school in class 1. The mother of the victim, PW2, also deposed that her daughter was not major on the date of incident. Notably, both the parents of the victim have not deposed about the date of birth of the victim. Further, none of the official witnesses have deposed about the date of birth of the victim. Therefore, in the whole evidence of the prosecution, the date of birth of the victim is not revealed.
20. When the victim herself entered into the witness box as PW4, she deposed that her date of birth is 10.10.1998. As per this deposition, the age of the victim was 18 years, 2 weeks and 2 days on the date of incident, i.e. 26.10.2016. As per the version of the prosecution, the date of birth of the victim was 25.12.1998 (as per this date, victim would have been a minor of 17 years, 10 months and 1 day on the date of incident). When this fact was put to the victim during her cross-examination, she stated that although her high school certificate mentions the same as her birth date, the same is wrong. Nothing was brought on record to contradict the victim's version. As mentioned above, the document itself was not adduced in evidence.
Cr. Case No. 2942/2017 STATE VS. ROHIT Page 9 of 14 Digitally signed by DEV DEV CHAUDHARY
CHAUDHARY Date:
2021.04.08
17:37:03 +0530
Thus, it can be safely concluded that the prosecution has failed to prove that the victim was a minor on the date of offence. As such, the condition precedent to invoking the present offence is not fulfilled in the present case. Even otherwise, there are other circumstances that warrant acquittal of the accused.
NO "TAKING" OR "ENTICING"-
21. The gravamen of the offence is either "taking" of "enticing" of the minor, by the accused. There is absolutely no evidence on record to suggest that the accused had taken the victim from the custody of the parents or that he had enticed the minor to accompany him. As per the testimony of the victim Komal (PW4), she went alongwith the accused to different places, after leaving the custody of her parents, voluntarily. She has deposed that the accused never enticed her, and she had gone with him as per her own will. Her statement under Section 164 CrPC is on similar lines. Although consent of the minor is irrelevant for the present offence {Refer, Prakash vs. State of Haryana (2004) 1 SCC 339}, there is nothing on record even otherwise to suggest that the accused did any act at the time when the victim left the custody of her parents or any time prior thereto. The parents of the victim have also not deposed regarding any such circumstance. In his statement under Section 313 CrPC, the accused has raised the defence that the victim had left her home on her own will and without any pressure from his side. This was because her parents were disturbing her due to their refusal to let her marry the accused. He had advised her not to take that step. Thus, it is apparent from record that the victim had left the custody of her Cr. Case No. 2942/2017 STATE VS. ROHIT Page 10 of 14 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2021.04.08 17:37:08 +0530 parents voluntarily and without any act on behalf of the accused. Once the victim had left the custody, he allowed her to accompany him.
22. In this regard, the Hon'ble Apex Court has observed that such an act would not constitute "taking" in terms of Section 361 IPC. It was held in the leading case of S. Varadarajan vs. State of Madras (1965) 1 SCR 243, as under :-
"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 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 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.
10. 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 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 fulfilment 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".
Thus, in the present case, it cannot be said that the accused did any Cr. Case No. 2942/2017 STATE VS. ROHIT Page 11 of 14 Digitally signed by DEV CHAUDHARY DEV CHAUDHARY Date:
2021.04.08 17:37:14 +0530 act towards taking or enticing the victim Komal and the act of allowing her to accompany him, once she had voluntarily left the custody of her parents, does not fulfil the requirements of the offence.
HOSTILE WITNESSES-
23. The main witnesses of the prosecution have turned hostile in the present case. Under Indian law, the evidence of hostile witnesses is not discarded completely. The legal maxin, "false in uno false in omnibus" is not applicable in India. With respect to the evidentiary value of hostile witnesses, it was observed by the Apex Court in the case of Rohtash Kumar vs. State of Haryana (2013) 14 SCC 434 , as under:-
"25. It is a settled legal proposition that evidence of a prosecution witness cannot be rejected in toto, merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witnesses cannot be treated as effaced, or washed off the record altogether. The same can be accepted to the extent that their version is found to be dependable, upon a careful scrutiny thereof."
24. Therefore, it has to be seen if the evidence of such hostile witnesses can be relied in part. In the present case, the evidence available on record is not sufficient to help the prosecution. The father of the victim, Rajvir (PW1), did not remember the date of the incident and further stated that his daughter had come back the next day. As per his version, she told him that she had gone to her friend's place. Further, he did not identify the accused. The mother of the victim, Meena Devi (PW2) also stated that she did not know the place from where her daughter was recovered. She stated that she did not know who kidnapped her daughter. She also did not identify the accused Rohit. She stated that although she went to Punjab to recover her Cr. Case No. 2942/2017 STATE VS. ROHIT Page 12 of 14 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2021.04.08 17:37:18 +0530 daughter, she did not see the person who was found with her daughter, when she was recovered. The victim Komal (PW4) has herself not supported the case of the prosecution and stated that he had left the custody of her parents herself, without any act on part of the accused. Thus, even if the evidence of the hostile witnesses is considered partly, there is nothing to implicate the accused. As such, none of the essential ingredients of the offence stands fulfilled in the present case.
25. Another fact worth mentioning is that even though Ct. Ashish (PW3) mentions in his testimony that the victim was recovered from the custody of accused Rohit, the recovery memo of the victim, Ex. PW3/A, does not mention the name of the accused anywhere. Further, as per the version of the prosecution witnesses, the victim was recovered from Village Goindwal, District Tarn Taran, Punjab. However, as per the arrest memo of the accused, Ex. PW3/B, the accused was arrested from Ludhiana, Punjab, which is a completely different place. The prosecution has offered no explanation in this regard.
CONCLUSION -
26. To recapitulate the above discussion, to bring home the guilt of the accused, the prosecution was required to prove the offence of Section 363 of the IPC beyond reasonable doubt. The age of the victim at the time of the incident is not proved to be below the age of majority. The witnesses of the prosecution have turned hostile, and their evidence on record is not enough to bring home the guilt of the accused. Further, the fact that there is no evidence regarding "taking" or "enticing" by the accused, has crumbled the whole case of the Cr. Case No. 2942/2017 STATE VS. ROHIT Page 13 of 14 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2021.04.08 17:37:23 +0530 prosecution.
27. Resultantly, the prosecution has failed to prove the offence beyond reasonable doubt. The accused ROHIT is hereby found not guilty. He is ACQUITTED of the offence under Section 363 of the Indian Penal Code, 1860.
ORDER -: ACQUITTED Pronounced in open court on 08.04.2021 in presence of accused.
Digitally signed by DEV DEV CHAUDHARY
CHAUDHARY Date:
2021.04.08
17:37:28 +0530
(DEV CHAUDHARY)
Metropolitan Magistrate - 07
South-West District, Dwarka Courts,
New Delhi.
Note: This judgment contains 14 pages and each page has been signed by me.
Cr. Case No. 2942/2017 STATE VS. ROHIT Page 14 of 14