Delhi District Court
State vs Amanatullah And Another on 19 February, 2020
IN THE COURT OF ADDITIONAL
CHIEF METROPOLITAN MAGISTRATEI
ROUSE AVENUE DISTRICT COURTS, NEW DELHI
PRESIDING OFFICER : SH. VISHAL PAHUJA.
F.I.R. No: 380/10
PS Jamia Nagar
U/s 109 r/w section 363 IPC
and u/s 506(ii) of IPC
State vs Amanatullah and another
JUDGMENT
Case no. : 39/19
Date of commission of offence : 01.11.2010
Date of institution of the case : 29.02.2016
Name of the complainant : Sh. Om Prakash
Name of accused and address : 1. Amanatullah,
s/o Sh. Waliullah,
r/o H.no. 12B, Jogabai
Extn., Jamia Nagar, New
Delhi.
2. Saifiullah Siddiqui
s/o Sh. Abdul Siddiqui
r/o N81, Batla House,
Jamia Nagar, New Delhi.
Offence complained of or proved : U/s 109 r/w section 363
IPC and u/s 506 (ii) IPC
Plea of the accused : Pleaded not guilty
FIR No. 380/10 Page 1 of 26
State vs Amanatullah & anr.
Final Order : Both the accused
persons stands acquitted.
Date on which reserved for : 15.02.2020
judgment
Date of announcing of judgment : 19.02.2020
****************************************************************************** BRIEF STATEMENT OF THE FACTS FOR DECISION:
1. The accused persons namely Amanatullah and Saifiullah Siddiqui have been prosecuted in this case for commission of offences under section 109 r/w section 363 IPC and u/s 506(ii) of the Indian Penal Code.
2. The case of the prosecution is that, a child labour rescue operation was being carried by the officials of Labour Department, representatives of Bachpan Bachao Andolan (in short BBA) and the police officials under the team lead by SDM. Sh. Pravesh Ranjan Jha, SDM, Defence Colony and Sh. On Prakash, Labour Officer.
Allegedly, 15 children who are found working in Zari work were rescued at Jamia Nagar, Batla House. They were taken to the vehicle brought by BBA. An uncalled for person and his associates came there obstructing the vehicle and took out the keys of the vehicle. Gathering of huge crowd led by the accused persons herein shouted that the children cannot be taken away. On the instigation of the accused persons, rescued children were taken back by the persons present in the mob and threats for life were extended to the members FIR No. 380/10 Page 2 of 26 State vs Amanatullah & anr.
of the rescue team. Considering their number to be few, rescue team could not do anything and escaped leaving the spot. On the same very day, Sh. Rakesh Senger, National Secretary BBA made a written complaint to PS Jamia Nagar against the present accused persons. A note was also made by the Labour Officer qua this incident and on the basis of the said note, SDM, Defence Colony made a complaint to police for taking action against the offenders. On the complaint of the SDM, present FIR was registered on 01.11.2010 u/s 353/186/506/34 IPC.
3. After conclusion of the investigation the police filed the charge sheet on 29.02.2016 u/s 186/353/363/506/34 IPC, 23/26 JJ Act and u/s 3/14 Child Labour Act. Ld. Predecessor of this court took cognizance and summoned both the accused persons. Upon their appearance before the court, compliance of section 207 Cr.P.C. was ensured. Ld. Predecessor of this Court after hearing the arguments on charge discharged the accused persons from all the offences vide detailed order dated 03.05.2018. In revision, the Ld. Sessions Court vide order dated 03.12.2018 set aside the order dated 03.05.2018 and held that the accused persons are liable to be tried for the offences u/s 109 r/w section 363 IPC and u/s 506 (ii) of IPC. In view of the said order a formal charge was served upon the accused persons on 05.12.2018 to which they pleaded not guilty and claimed trial.
FIR No. 380/10 Page 3 of 26State vs Amanatullah & anr.
PROSECUTION EVIDENCE:
4. To prove its case, the prosecution has examined eighteen witnesses in total. The testimony of PWs are as follows:
5. PW1 Satish Prajapati, System Administrator, BBA, testified and exhibited the CDs containing the videos and photographs on record as Ex. PW1/A and Ex. PW1/B respectively. This witness also exhibited the certificate u/s 65 B of Indian Evidence Act as Ex. PW1/C. This witness was cross examined on behalf of the accused persons.
6. PW3 Rakesh Senger, is the star witness of the prosecution who deposed in his examination in chief that on 01.10.2011 a rescue operation was conducted in Batla House, New Delhi. The raiding team consisting of officials of SDM office, Labour Department, Delhi Police and representatives of BBA was led under the supervision of SDM Sh. Parvesh Ranjan Jha. He further stated that 5 teams were constituted that conducted raid at seven places rescuing more than 50 children. It is further deposed that after completing the formalities, some children were taken to the vehicles, suddenly a mob of around 100 persons came there including the accused persons namely Amanatullah Khan and Saifiullah Siddiqui. It is stated that accused Amanatullah Khan took out the keys of the vehicle in which some FIR No. 380/10 Page 4 of 26 State vs Amanatullah & anr.
children were sitting and said no children will be allowed to be taken by the team and thereafter the mob including the employers of those children and accused Amanatullah took the children from the vehicle. It is further stated that Amanatullah Khan and Saifiullah Siddiqui threatened PW3 and other members of the team to go back else, there legs and hands will be broken. It is further deposed that the team in order to rescue themselves went away from the spot and PW3 made a complaint to SHO, PS Jamia Nagar i.e. Ex. PW3/A. This witness identified the accused persons in the court. He further exhibited on record the seizure memo vide which two CDs handed over to the IO were seized as Ex. PW3/B. He further exhibited on record the 58 photographs showing the accused persons at the spot and the children rescued and the children working in the factory as Ex. PW3/C1 to Ex. PW3/C58. This witness was also cross examined on behalf of the accused persons.
7. PW4 Insp. Surender Kumar Yadav who claims to be part of the raiding team deposed that seven teams consisting of officials of labour department, members of NGO BBA and police officials were formed and under the supervision of SDM, Defence Colony reached Hari Masjid Chowk, Jamia Nagar. This witness deposed almost on the same lines as that of PW3. This witness also identified the accused persons in the court and their role of obstructing the rescue operation and taking away the rescued children from the spot by FIR No. 380/10 Page 5 of 26 State vs Amanatullah & anr.
using force. This witness was also cross examined on behalf of the accused persons.
8. PW5 ASI Fateh Singh was the duty officer, who exhibited on record the print out of the FIR as Ex. PW5/A (OSR), original tehrir with an endorsement as Ex. PW5/B. This witness was cross examined on behalf of both the accused persons.
9. PW6 Sh. Parvesh Ranjan Jha, Additional Secretary to Chief Minister who was the then SDM of Defence Colony deposed that a child labour rescue operation was planned on the complaint of NGO BBA for 01.11.2010. A preparatory meeting for this rescue operation was held on 28.10.2010. It is further stated that on 01.11.2010 all concerned officials and representatives of BBA assembled at PS Kalkaji around 09.30 AM in the morning. Subsequently, seven rescue teams were formed under his supervision and under the supervision of Sh. Om Prakash, the then Labour Officer. It is further deposed that the teams reached Jamia Nagar Batla House where children were found working in Zari units and several children were rescued. It is further deposed that the operation could not be completed due to illegal protest by a large group of people due to which teams have to leave the area. It is further stated by PW6 that a note from Labour Officer narrating the entire incident was forwarded to ACP, PS New Friends Colony stating that the matter needs to be investigated for taking action against miscreants who FIR No. 380/10 Page 6 of 26 State vs Amanatullah & anr.
obstructed the entire rescue team in discharge of its duty. This witness exhibited the complaint given by him to ACP as Ex. PW6/A and the note written by Sh. Om Prakash, Labour Officer forwarded by him as Ex. PW6/B. This witness identified accused Amanatullah Khan in the court being part of the protesting mob against the rescue operation, however, this witness failed to identify the other accused due to lapse of time. This witness was also cross examined on behalf of the accused persons.
10. PW7 Sh. Om Prakash, the then Labour Officer, South District deposed on the same lines as PW6. This witness specifically stated the name of accused Amanatullah Khan who being part of mob said "you cannot take these children like this" and he also took out the key from the vehicle which was carrying rescued child labourers. This witness identified both the accused persons in the court and also relied upon the note written by him already exhibited on record as Ex. PW6/B. This witness was cross examined on behalf of the accused persons.
11. PW8 HC Ashok Kumar exhibited on record the arrest memo and personal search of accused Saifiullah as Ex. PW8/A and Ex. PW8/B respectively. This witness was also cross examined on behalf of the accused persons.
FIR No. 380/10 Page 7 of 26State vs Amanatullah & anr.
12. PW9 Ct. Surajmal deposed qua the manner and his involvement in the investigation. He exhibited on record arrest memo and personal search memo of accused Amanatullah Khan as Ex. PW9/B and Ex. PW9/C respectively. He also identified his signatures as witness on the disclosure statement as Mark PW9/A. This witness was also cross examined on behalf of the accused persons.
13. PW10 HC Purshottam deposed qua the manner and his involvement in the investigation. This witness relied upon the documents already exhibited on record as Ex. PW3/B which bears his signatures as witness. This witness was also cross examined on behalf of the accused persons.
14. PW11 Retd. Kale Singh, the then HC, PS Jamia Nagar deposed qua the manner and his involvement in the investigation. He was assigned the duty to trace four children namely Mohd. Shamsher, s/o Mohd. Fappu, Rakesh s/o Rakesh Kishore Paswan, Kailash Paswan s/o Rajender Paswan and Ravi s/o Date Paswan. This witness visited Madhubani District and recorded the statements of guardians of children. He exhibited on record the departure and arrival entry as Ex. PW11/A, DD entry regarding information to the local police as Ex. PW11/B, statement of Parmil Devi, w/o Dilip Paswan as Ex. PW11/C, DD entry regarding information to the local police as Ex. PW11/D, statement of Ruksana Begam as Ex.
FIR No. 380/10 Page 8 of 26State vs Amanatullah & anr.
PW11/E, statement of Rajender Paswan Ex. PW11/F, statement of Chote Paswan as Ex. PW11/G. This witness was also cross examined on behalf of the accused persons.
15. PW12 Insp. Balkishan, Labour Officer, the then Labour Inspector also deposed qua the forming of seven teams and the rescue operation carried. This witness recorded the names of the rescued children and prepared a list that was forwarded to SHO PS Jamia Nagar. The list is exhibited as Ex. PW12/A that contained names of 24 rescued children, details of which were recorded in a performa i.e. marked as Ex. PW12/B1 to Ex. PW12/B4. This witness was also cross examined on behalf of the accused persons.
16. PW13 Retd. Insp. Kailash Bisht, who was part of the rescue team also deposed on the same lines as of PW6. This witness identified both the accused persons in the court who were part of the crowd that took away the children with it. He further deposed that some of the persons in the crowd were shouting that they will not allow the children to be taken by the teams and even assaulted the teams. He recorded his statement to the IO after the operation was terminated. This witness was also cross examined on behalf of the accused persons.
FIR No. 380/10 Page 9 of 26State vs Amanatullah & anr.
17. PW14 Krishan Kumar, the then SDM, Defence Colony, exhibited on record the letter dated 01.07.2015 issued by him seeking clarification from the SHO PS Jamia Nagar as Ex. PW14/A. This witness was also cross examined on behalf of the accused persons.
18. PW15 Insp. Jitender Singh deposed qua the manner and his involvement in the investigation. He was assigned the task of tracing the employers of the children but he could not trace them. This witness was not cross examined on behalf of the accused persons.
19. PW16 Bitkuriya Mochi, Head Master, Middle School, Kora, PS Singhwara, District Darbangha, Bihar, brought the admission register containing the details of admissions since 1997 having the admission details of child Ravi Kumar Paswan, s/o Dilip Paswan. He exhibited the certificate issued by earlier Head Master Sh. Umesh Pandey on the basis of the record of this register as Ex. PW16/A. As per the record, the date of birth of Ravi Kumar Paswan was 20.03.1997. This witness was also cross examined on behalf of the accused persons.
20. PW17 Insp. Amrit Raj was the Investigating officer in the present case who deposed qua the manner and his involvement in the investigation. He deposed that on the night of 01.01.2010 he was handed over a copy of FIR no. 380/10 by duty officer, rukka already FIR No. 380/10 Page 10 of 26 State vs Amanatullah & anr.
Ex. PW5/B along with a letter of SDM, Defence Colony already Ex. PW6/A, report of labour officer Om Prakash and the complaint given on behalf of BBA as already Ex. PW3/A. This witness further deposed that he along with Ct. Purshotam Singh went to BBA office and recorded the statement of Rakesh Senger who handed over him a CD already Ex. PW3/B. He further exhibited on record the list given by Insp. Jagdish Prasad and Balkishan containing the 21 names of the children as Ex. PW17/A and Ex. PW17/B respectively. This witness further recorded the statements of the witnesses Ct. Purshottam, Surender Kumar Yadav, ATO Kalkaji, Insp. Sheel Nidhi, PS Sarita Vihar, Insp. Kailash Bisht, PS Govindpuri, Labour officer Om Prakash, Ct. Kale Singh. This witness also relied upon the documents already exhibited on record Ex. PW8/A, Ex. PW8/B, Ex. PW9/B and Ex. PW9/C. This witness further stated that efforts were made to trace the children of this case but they were not found. This witness identified the accused persons before the court. This witness was also cross examined on behalf of the accused persons.
21. PW18 SI Chandan Kumar, was the IO who filed the charge sheet and he deposed qua the manner and his involvement in the investigation. He obtained the certificate u/s 65B of Indian Evidence Act from BBA and thereafter filed the charge sheet. This witness was also cross examined on behalf of the accused persons.
FIR No. 380/10 Page 11 of 26State vs Amanatullah & anr.
22. PW19 Sheel Nidhi, Retd. ACP deposed on the same lines as of PW6. This witness also identified the accused persons before the court who were part of the mob present at the spot. This witness specifically stated that the accused persons were protesting and obstructing the rescue operation and forcibly got freed the rescued children. This witness was also cross examined on behalf of the accused persons.
23. No other material witness was left to be examined, thus PE was closed on 22.07.2019.
STATEMENT OF ACCUSED PERSONS U/S 313 Cr.P.C.:
24. Statement of accused persons U/s 313 Cr.P.C. was recorded in which all incriminating circumstances appearing in evidence against accused persons was put to them to which they stated that they are innocent and all the witnesses are interested and deposed falsely. No public person has deposed against them. It is a case of political nature/rivalry. It is further stated that there is no evidence on record against them for making any attempt to kidnap any person or to extend threat to anybody. It is stated that they have been falsely implicated in this case. Accused persons opted to lead defence evidence but did not examine anyone in their defence.
FIR No. 380/10 Page 12 of 26State vs Amanatullah & anr.
ARGUMENTS:
25. Ld. APP for state has argued that on a combined reading of prosecution witnesses testimony, offence U/s 109 r/w section 363 IPC as well as offence u/s 506(II) IPC are proved beyond doubt. It is addressed that all the star witnesses of the prosecution have duly proved the case against the accused persons and their testimony remained unrebutted on the material aspects, thereby, proving the guilt of the accused persons. Ld. Counsel appearing on behalf of Bachpan Bachao Andolan (BBA) filed its written submissions emphasizing on two major aspects. One, that all the prosecution witnesses have categorically proved the abetment made by the accused persons instigating the crowd committing the offence u/s 109 r/w section 363 IPC and the criminal intimidation u/s 506 (II) IPC. Secondly, it is not that as a consequence of abetment no offence is committed, still the accused persons are liable to be held guilty u/s 116 IPC. In support of her arguments, Ld. Counsel relied upon judgment passed by Hon'ble Apex Court in Jamuna Singh v. State of Bihar, decided on 22.09.1966.
26. On the other hand, Ld. counsels for accused persons have argued that there is no legally admissible evidence against the accused persons. It is argued that there is no public witness in the present case and the police officials claimed to have witnessed the FIR No. 380/10 Page 13 of 26 State vs Amanatullah & anr.
incident whose testimony cannot be relied upon in absence of any independent public witness. It is further argued that the material witnesses of the prosecution have not supported the case in any manner. Further, the actual happening of any such incident could not be proved by the prosecution witnesses beyond reasonable doubt. It is further argued that the testimony of police witnesses carried material discrepancies that raises a strong doubt in the version of the prosecution. It is strongly argued that ingredients of offences u/s 363 and 506(II) IPC have not been able to be established on record. Arguing further Ld. counsels submitted that prosecution has failed to prove the guilt of accused persons beyond reasonable doubt due to tainted and contradictory testimony of PWs, hence accused persons are entitled to be acquitted. In support of his arguments Ld. Counsel for accused no. 2 relied upon judgments Kanshi Ram v. State, 86(2000) DLT 609, Ashok Kumar Nayyar v. State, decided on 01.05.2007 and Noble Mohandass v. State, decided on 29.02.1988.
FINDINGS:
27. Arguments adduced by Ld. APP for State, Ld. Counsel for Bachpan Bachao Andolan and Ld. Defence Counsels for the accused persons have been heard. Evidences and documents on record perused carefully.FIR No. 380/10 Page 14 of 26
State vs Amanatullah & anr.
28. This Court has bestowed thoughtful consideration to the rival submissions made before the Court. Accused persons are indicted for the offences U/s 109 r/w section 363 IPC and section 506(II) IPC.
Section 109 IPC provides for punishment for the offence of abetment if the offence abetted is committed in consequence of the abetment. Section 363 IPC provides for punishment for kidnapping a person from lawful guardianship. Section 361 IPC talks about kidnapping from lawful guardianship. That reads 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 suchminor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
Section 506(II) IPC provides for punishment for the offence of criminal intimidation, if the threat is to cause death or grievous hurt ... or ... both.
Section 503 IPC reads as under:
Criminal Intimidation - Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal FIR No. 380/10 Page 15 of 26 State vs Amanatullah & anr.
intimidation.
29. After appreciating the evidence and going through the testimony of the prosecution witnesses, this Court finds the accused persons not guilty for any offence charged herein and they deserve acquittal for the following reasons:
30. For holding a person guilty for the offence of abetment of an offence u/s 109 IPC the commission of the abetted offence as a consequence has to be established. In the instant case the abetted offence that is, alleged to have been committed is the offence of kidnapping u/s 363 IPC. There are three ingredients to be complied as per section 361 IPC.
1. The taking or enticing of minor under 16 years of age if a male, or under 18 years of age, if a female or any other person of unsound mind.
2. Out of keeping of lawful guardian of such minor or person of unsound mind.
3. Without the consent of such guardian.
31. PW12 Insp. Balkishan, Labour Officer, is the witness who deposed that he prepared the list of rescued children exhibited as Ex. PW12/A and recorded the details in a performa Mark PW12/B1 FIR No. 380/10 Page 16 of 26 State vs Amanatullah & anr.
to Mark PW12/B4 and one of the child namely Ravi s/o Sh. Dilip Paswan is stated to be of 14/15 years as per the certificate Ex. PW16/A exhibited on record by the Head Master, Middle School, Kora, Shri Bitkuriya Mochi, PW16. The testimony of the aforesaid witnesses does not prove the identity of the child namely Ravi Paswan for the reason that neither his parents have been examined by the prosecution nor the photograph of such child has been placed on record. Further, it is not proved on record by any of the prosecution witness that child namely Ravi Paswan was recovered from any work place in the raid conducted by the District Task Force. There is no identification of child Ravi proved on record. PW12 in his cross examination admitted that his name is not mentioned in any of the document placed on record to show that he was member of the raiding party or that he has visited the place of raid. During his cross examination PW12 even admitted to have no concern if any preparatory meeting before conducting the raid took place or not. He could not even tell the name of the owner of the house from where children were recovered. The testimony of PW12 in view of the material infirmities cannot be considered as reliable, thus does not inspire confidence.
32. PW11 Kale Singh has been examined by the prosecution who was assigned the duty to trace four children. This witness recorded statement of the guardians of children namely Ravi Paswan, Kailash FIR No. 380/10 Page 17 of 26 State vs Amanatullah & anr.
Paswan, Rakash Paswan and Mohd. Shamsher. Except the child Ravi Paswan the birth certificate/proof of age of remaining children could not be procured by the witness. It has already been observed in the previous paragraph that the identity of the child Ravi Paswan has not been established by any cogent evidence on record. In the statement Ex. PW16/A Ravi Paswan was stated to be available at his home but no efforts have been made by the prosecution to ensure his presence before the court as witness nor his statement u/s 164 Cr.P.C. has been recorded. Similarly, the statements of the guardians of other children recorded by PW11 have not been proved on record as none of the guardian has been examined before the court as witness to prove their statement. Further, the statement of the guardians does not proves that there children were the same children who were rescued by the rescue team. In these circumstances the testimony of PW11 also not of much help to the case of the prosecution. The age proof of these children has also not been brought on record. Merely, mentioning the name of the children in a particular performa without their actual identity and their age proved on record does not establish the first ingredient of section 361 IPC.
33. Above all the recording of names and details of children immediately after the rescue where mob gathered to obstruct the operation by the team members cannot be believed in any possible FIR No. 380/10 Page 18 of 26 State vs Amanatullah & anr.
circumstances. In such a commotion and apprehension of attack by mob any prudent person will try to move the children at safer place and then record their details and will not wait for the children to be taken away. In the testimony of all the prosecution witnesses including police official, representatives of Bachpan Bachao Andolan and the officials from Labour Department it has been admitted on record no complaint from any children or from their parents to the effect of their being detained forcibly or illegally has been received. It is also admitted case of the prosecution that neither the employer of such children nor the parents of such children have been cited as accused or witness respectively to prove the identity of children and their age to be less than 16 years.
Ld. Counsel for BBA argued that SDM was the lawful guardian from whose custody the children were rescued. First and foremost the SDM i.e. PW6 did not stated so anywhere in his testimony before the court. Further, there was no entrustment of children with SDM proved on record to call him a lawful guardian under the law. In such scenario the other ingredients i.e. the kidnapping of the alleged children from the lawful guardianship without his consent could also not be established. Once the offence of kidnapping is not proved on record to have been committed, the abetment thereof also remained unproved.
FIR No. 380/10 Page 19 of 26State vs Amanatullah & anr.
34. PW3 Rakesh Senger, Former National Security, Bachpan Bachao Andolan, is the star witness of the prosecution. In his examination in chief this witness deposed categorically against the accused persons qua their instigation and the threat extended by them as "They accused Amanatullah Khan took out the keys of the vehicle in which some children had sat. The accused Amanatullah said that no children will be allowed to be taken by the team and thereafter the mob including the employers of those children and accused Amanatullah took the children from the vehicle. They snatched all the children from the team and took the children back. We were threatened by accused Amanatullah Khan and Saifiullah that we shall go back otherwise out legs and hands will be broken".
During his cross examination PW3 was confronted with his complaint Ex. PW3/A where PW3 admitted as "It is correct that I had not mentioned in my complaint Ex. PW3/A that accused Amanatullah Khan took out the keys of the vehicle in which some children had sat. It is correct that I had not specifically mentioned in my complaint Ex. PW3/A that accused Amanatullah Khan said that no children will be allowed to be taken by the team".
The aforementioned statements of PW3 are completely contradictory to his early version and are result of improvisation. In Ex. PW3/A also the allegations against the accused persons are that they tried to forcibly take away the children whereas in his chief it is alleged that the accused took away the children which is again a material contradiction in the statements of PW3. It is alleged by PW 3 in his complaint Ex. PW3/A that at the instigation of the accused FIR No. 380/10 Page 20 of 26 State vs Amanatullah & anr.
persons a large group of people came and forcefully started taking the kids back while assaulting the team members whereas the specific words that can assume the significance of instigation are not spelt anywhere in the testimony of PW3. Hence, the abetment on the part of accused persons as such has not been proved by PW3 in his testimony.
35. PW4 during his cross examination stated that mob has snatched the children from the team at the instigation of the accused persons but he failed to state as to in what manner the accused persons instigated the mob and what words or slogan they used to instigate the mob. On the contrary, in his examination in chief PW4 state that the accused persons themselves took away the rescued children from the spot by using force which is material contradictory statement by PW4. PW4 nowhere in his examination in chief stated qua the threat extended by the accused persons to any of the member of the rescue team. Hence, testimony of PW4 does not support the case of prosecution beyond doubt.
PW13 during his cross examination pleaded ignorance about the fact of the threat being extended by the accused persons to the officials personally in his presence. In his examination in chief, PW 13 did not name the accused persons as perpetrator of any crime in any manner. In fact, it is stated by PW13 that some of the persons in the crowd were shouting that they will not allow the children to be FIR No. 380/10 Page 21 of 26 State vs Amanatullah & anr.
taken by the teams and even assaulted the teams but nowhere the role of accused persons have been explained. Hence, testimony of PW13 also does not support the case of the prosecution.
PW19 during his cross examination pleaded ignorance about the fact of intimidation by the accused persons to him or any other member of team. This witness also stated that he do not remember if the accused persons alighted the rescued children from the vehicles personally whereas in his examination in chief this witness stated that the accused persons forcefully got freed the rescued children which is a major contradiction in the version of PW19. This witness further stated that he was not the member of any team and he was standing outside the building. Hence, the testimony of PW19 also do not inspire much confidence and does not support the case of prosecution beyond reasonable doubt.
36. Further, PW4 Insp. Surender Kumar Yadav, PW13 Insp. Kailash Bisht and PW19 Sh. Sheel Nidhi, Retd. ACP during their cross examination admitted that they do not remember or have particulars of the DD entry made by them with respect to departure and arrival at the spot of raid and the police station. Further, there is nothing on record to show that the aforesaid officials were part of the rescue team or they actually visited the place of raid. There possibility of being planted witness cannot be ruled out.
FIR No. 380/10 Page 22 of 26State vs Amanatullah & anr.
37. PW6 Sh. Parvesh Ranjan Jha, the then SDM, Defence colony under whose supervision the raid was conducted also failed to substantiate the allegations against the accused persons. This was also the material witness examined by prosecution on whose complaint the FIR was registered. In his examination in chief PW6 failed to identify the accused Saifiullah. During his cross examination, PW6 admitted that he did not see the accused Amanatullah Khan personally threatening any person present there nor it has been stated by this witness either in his examination in chief or during his cross examination that the accused Amanatullah Khan instigated the mob to take away the children from the spot. This witness even do not testify as whether children were in his possession after rescue or not in order to claim himself a lawful guardian. PW6 in his complaint PW6/A did not name the accused persons or mentioned there specific roles in the incident. Hence, his testimony also does not support the prosecution in any manner.
38. Another star witness of the prosecution Sh. Om Prakash, PW7, the then Labour Officer also failed to support the case of the prosecution in any manner on the material aspects. During his cross examination PW7 stated that the accused persons did not threaten him personally during the incident. In his examination in chief nowhere it has been stated by him that the accused persons instigated the mob to take away the children nor it has been stated that the accused persons threatened any member of the rescue FIR No. 380/10 Page 23 of 26 State vs Amanatullah & anr.
team as alleged by the prosecution. PW7 in his examination in chief stated that children got away and took away from the vehicle by the mob which in no manner attribute any role of accused persons in abetting the offence of kidnapping. In his note Ex. PW6/B also this witness did not specify the role of accused persons. In fact the accused persons are not named therein by this witness. Hence, the testimony of PW7 is also of no help.
39. PW1 filed and relied upon the CD Ex. PW1/B containing video of incident. Court has played and seen the clippings of videos. The incident of abetment or threatening by accused persons is nowhere visible in the videos. In fact, the accused does not appear in the videos. Hence, the ingredient of section 506(ii) IPC are also not proved on record.
40. Ld. Counsel for Bachpan Bachao Andolan argued that though main offence is not committed but accused are to be held for abetment. This argument is not tenable as it is not the case of prosecution that offence abetted has not been committed it is rather the same has been committed but as per record it has not been proved beyond reasonable doubt. Accused persons have been charged for offence u/s 109 r/w section 363 IPC and not under section 115/116 IPC so the main ingredient for offence u/s 109 IPC, that as a consequence of abetment offence u/s 363 IPC has committed was to be proved which also falls flat in view of the FIR No. 380/10 Page 24 of 26 State vs Amanatullah & anr.
discrepant evidence led on record. In view of above observation, the judgment relied by Ld. Counsel for Ld. Counsel for BBA does not help the prosecution being distinguishable on the ground of facts and circumstances of the present case.
41. Ld. Counsel has heavily relied upon the observations made by Ld. Revisionist Court in the order vide which the discharge order of this court was set aside. It is pertinent to note that the Ld. Revisionist Court gave observations finding prima facie case at the stage of charge and specifically stated that the facts to be proved during the trial by adducing evidence. None of the eyewitnesses of the incident corroborated each other's version in their testimony. In fact the star witnesses have given a contradictory version in their chief as well as cross examination when compared to each other. There are material discrepancies in the testimony of the witnesses of prosecution which creates dent in the story of the prosecution. If two sets of eye witnesses who are necessary to the case of prosecution deposes contrary to each other and do not corroborate, the offences cannot be held to be proved beyond reasonable doubt.
42. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. Also, it is a settled proposition of criminal law that accused is entitled to the benefit of reasonable doubt in the prosecution story and such FIR No. 380/10 Page 25 of 26 State vs Amanatullah & anr.
reasonable doubt entitles the accused to be acquitted. It is the settled principle of law that in case two version or two inferences can be drawn, the version favourable to accused has to be accepted by the court. None of the star witnesses of the prosecution has corroborated to the claim of PW3 that the accused persons have threatened him or any other member of the rescue team to attract section 506(II) IPC. Thus, the prosecution has miserably failed to prove the ingredients of offences u/s 109 read with section 363 IPC and section 506(II) IPC on record.
43. In view of the foregoing discussion, it is held that the prosecution has not been able to successfully build the case against the accused persons. Accordingly, both the accused persons are entitled to be given benefit of doubt. Hence, accused persons namely Amanatullah Khan and Saifiullah Siddiqui stands acquitted for the offences they are charged with.
VISHAL Digitally signed by
VISHAL PAHUJA
PAHUJA Date: 2020.02.19
16:53:37 +0530
ANNOUNCED IN THE OPEN (VISHAL PAHUJA)
COURT ON 19.02.2020. ACMMI/RACC/DELHI
Containing 26 pages all signed by the presiding officer.
Digitally signed by VISHAL VISHAL PAHUJA
PAHUJA Date: 2020.02.19
16:53:45 +0530
(VISHAL PAHUJA)
ACMMI/RACC/DELHI
FIR No. 380/10 Page 26 of 26
State vs Amanatullah & anr.