Delhi District Court
State vs Sehdev @ Deva S/O Sh. Suraj on 4 August, 2012
IN THE COURT OF DR. T.R. NAVAL, ADDITIONAL SESSIONS JUDGE-02, EAST DISTRICT, KARKARDOOMA COURTS, DELHI Unique Case I.D. No.02402R0307982009 SC NO.59/10 Date of Institution :26.10.2009 FIR No.28/06 Date of Argument :03.08.2012 PS Geeta Colony Date of Order :04.08.2012 U/S 363/366 IPC State Versus Sehdev @ Deva S/o Sh. Suraj Prakash, R/o Village Khosa, PS Zilesar, District Etah, U.P. 2nd Address : H.No.292, St. No.8, New Lahore, Shastri Nagar, Delhi JUDGMENT
The facts in brief of the prosecution case as culled out from the charge sheet are that on receipt of DD No.7A dated 26.01.06, ASI Deen Mohd. alongwith Ct Raj Kumar reached at house No.279-A, St. No.8, New Lahore, Shastri Nagar, Delhi and met Mohd. Abbas complainant who made his statement to the effect that on 25.01.06 her daughter Nazma aged about 15 years went to school but she did not return. He was having suspicion over Pintu who was doing stitching work with him one year ago. He also disclosed that her daughter took away 11 tola of gold and Rs.60000/- in cash. IO prepared rukka and FIR was got registered on 26.01.06 at PS, Geeta Colony. On receipt of an information, IO and other officials arrived at Etah, U.P. on 22.02.06 and tried to trace prosecutrix Nazma and Pintu. As they received an information SC No.59/10 State v. Sehdev @ Deva Page No. 1 of 15 that prosecutrix and Pintu had returned back to Delhi, so, they also returned and found prosecutrix Nazma and Pintu in front of Anand Vihar Bus Stand. Both of them were taken into custody. Nazma and Pintu were got medically examined. Statement of Nazma was got recorded U/s 164 Cr.PC, wherein she levelled allegations against Sehdev @ Deva s/o Sh. Suraj Prakash, who was also arrested. He was found juvenile, so, a separate charge sheet against accused Sehdev @ Deva was filed before Juvenile Justice Board and filed a separate charge sheet against accused Pintu on 05.05.06 for his trial for the offence punishable U/s 363/376/120B/34 IPC.
2. On appearance Ld. M.M. supplied copies of charge sheet to the accused Pintu and committed this case to the court of sessions and the case was assigned to this court.
3. My Ld. Predecessor vide his order dated 17.04.2007 was of the opinion that there was sufficient material on record to frame charge against accused Pintu U/s 376/365/363/366 IPC, therefore, charges for the said offences were framed and read over to him in vernacular language. He pleaded not guilty and claimed trial.
4. The prosecution, in order to prove its case, examined HC Jagmal SIngh as PW1; Mohd. Abbas father of prosecutrix as PW2; Kumari Nazma, prosecutrix as PW3; Dr. Bhagwat Prasad as PW4; W/C Geeta as PW5; Ct Damodar SC No.59/10 State v. Sehdev @ Deva Page No. 2 of 15 Singh as PW6; HC Mool Chand as PW7; Sh. S K Sharma, TGT (Science) as PW8; Ct Dharmender as PW9; HC Raj Kumar as PW10, Ms. Poonam Chaudhary, ADJ as PW11; HC Prakash Veer as PW12; Dr. A K Kulshrestha, Casualty Incharge as PW13 and Retd. ASI Deen Mohd. as PW14.
5. After closing of prosecution evidence statement of accused Pintu was recorded u/s 313 Cr. P.C. He admitted that Kumari Nazma herself accompanied him with her own free will and consent. His marriage with Nazma was solemnized by the villagers at the instance of Kumari Nazma by her free will and consent at compelling circumstances. They lived in a rented premises. Age of Kumari Nazma was not 15 years, but, it was 19 years at the time of their marriage. The police has made out a false case against him at the instance of father of Kumari Nazma.
6. My Ld. Predecessor vide his judgment dated 30.03.2009, acquitted accused Pintu from the charges of offences punishable u/s 363/365/366/376 IPC observing that Kumari Nazma was major at the time when she was allegedly took away by accused Sehdev @ Deva and went with accused Pintu and solemnized marriage with accused Pintu. Prosecutrix left protection of her father knowingly and having capacity to know the full import of what she was doing and voluntarily joined the accused persons. The accused could not be said to how taken her away from the keeping of her SC No.59/10 State v. Sehdev @ Deva Page No. 3 of 15 lawful guardian. Prosecutrix did not raise any alarm. She did not put up any struggle at the time of leaving house of her father and going with accused and for that reason, it appeared that she was a willing party and there could be no taking her out of the guardianship of her father. She went to Etah with Pintu where Pintu got married with her in a temple and they started living as husband and wife where they lived for one month and Pintu established physical relations with her. It was also observed by my ld. predecessor that testimony of prosecutrix PW3 did not inspire confidence and there were contradictions at every stage of the case and it would not be reasonably safe to convict the accused on the basis of her testimony. The defence put forward by the accused appeared to be probable. Pintu was doing stitching work with the complainant for about one year before the incident and it appeared that prosecutrix developed some intimacy with the accused during that period. There were also contradictions in the testimony of PW2 and PW3. In her statement recorded U/s 164 Cr.PC she also disclosed that Deva had told her that either he would marry her or she would be married with other person at her desire that had established that she voluntarily left her house. In cross examination she admitted that she did not raise any alarm at any place and she was free to make call from the PCO. That further, proved that she left her house of her own and there was no inducement, allurement or threat. She was never kept in wrongful, secret confinement or at isolated place and all SC No.59/10 State v. Sehdev @ Deva Page No. 4 of 15 those circumstances had established that she left her house of her own accord in order to marry with accused Pintu. Consequently, my ld. predecessor acquitted accused Pintu from all the charges punishable U/s 363/365/366/376 IPC.
7. The Juvenile Justice Board, in order to find out the correct age of accused Sehdev @ Deva summoned the Head Mistress of R.L. Public School, Sarai Nivera, District Etah, UP alongwith entire admission record of accused Sehdev @ Deva and on perusal thereof, the board came to the conclusion that a transfer certificate produced for and on behalf of the accused was a forged document and accused never studied in that school. Ossification test of accused was got conducted. It was opined that accused was between 19-20 years of age on the date of commission of offence i.e. 25.01.06. The board came to the conclusion that accused Sehdev @ Deva was adult and the charge sheet was returned to the Chief Metropolitan Magistrate and ultimately it was assigned to this court on committal.
8. My Ld. Predecessor opined that there was a prima facie case U/s 363/366 IPC against accused Sehdev @ Deva, therefore, charge for the said offences was framed and read over to the accused in vernacular language. Accused pleaded not guilty and claimed trial.
9. The prosecution, in order to prove its case against SC No.59/10 State v. Sehdev @ Deva Page No. 5 of 15 accused Sehdev @ Deva, re-examined Kumari Nazma, prosecutrix as PW1; Mohd. Abbas father of prosecutrix as PW2; Sh. S K Sharma, TGT (Science) as PW3; HC Prakash Veer as PW4; W/C Geeta as PW5; Ct Damodar Singh as PW6; HC Raj Kumar as PW7; Ct Dharmender as PW8; HC Mool Chand as PW9; Retd. ASI Deen Mohd. as PW10; Sh. Raj Pal Singh, Retd. Principal as PW11; Ms. Poonam Chaudhary, ADJ as PW12; Dr. Bhagwat Prasad as PW13; Dr. Richa Singhal as PW14 and ASI Jagmal SIngh was examined as PW15, incorrectly mentioned as PW1.
10. After closing of prosecution evidence, statement of accused U/s 313 Cr.P.C. was recorded. Accused admitted that prior to 25.01.06 he used to visit at the factory of PW2 Mohd. Abbas and during his visit he came to know PW1 Nazma. He also admitted that he saw a quarrel between PW1 Nazma and her sister Aasima on 24.01.06. He either denied rest of the evidence or expressed his ignorance about the same. He pleaded that he was falsely implicated in this case as his father helped the police in tracing Nazma and Pintu at the false statements of Nazma and his father.
11. The accused in his defence examined himself u/s 315 Cr.P.C. as DW1, besides, examining his father Sh. Suraj Prakash as DW2.
12. After closing of evidence by both the parties, I have SC No.59/10 State v. Sehdev @ Deva Page No. 6 of 15 heard the arguments of Ld. Addl. Public Prosecutor of the state and ld. Defence Counsel for the accused.
13. It has been argued on behalf of ld. defence counsel that prosecutrix falsely implicated the accused. Her testimony is unworthy of credence. Accused never enticed Nazma and he never kidnapped or abducted her either to confine her secretly or to compel her to marry with any person against her will. He stressed on the point that prosecution has failed to prove its case against the accused beyond reasonable suspicion and shadow of doubt and accused is entitled for acquittal.
14. On the other hand, it has been argued on behalf of ld. Addl. Public Prosecutor that accused Sehdev @ Deva allured and enticed prosecutrix Nazma and due to that allurement, she took 11 tolas of gold and Rs.60,000/- in cash from her house and handed over the same to accused. He allowed Pintu to take her away having knowledge that she could be seduced or could be marry against her will. He emphasized that prosecution has proved its case against accused beyond reasonable suspicion and shadow of doubt.
15. On perusal of material on record and analyzing the evidence as well as considering the rival contentions made by Ld. Additional Public Prosecutor for the state and Ld. Defence Counsel for the accused persons, I come to the conclusion SC No.59/10 State v. Sehdev @ Deva Page No. 7 of 15 that prosecution has failed to prove its case against accused Sehdev @ Deva beyond any reasonable suspicion and doubt. The reasons which support my decision are firstly, that there are contradictions in the testimonies of material witnesses. For example, prosecutrix as PW3 deposed that accused Deva met her in the way on 25.01.06 around 7.00 AM when she was going to her school Alok Bharti Secondary School situated at Khureji Khas, Delhi and told her that her family members were not caring her and her mother used to beat her. As PW1, she deposed that on 24.01.06 a quarrel had taken place between her and her sister Aasima at the roof and Deva saw that quarrel and in the evening accused Deva met her in the presence of her brother Sahanshah at a park situated opposite to her house and told that nobody at her house loved her. Thus, there is contradiction on the point of date as well as on the presence of her brother Sahanshah. Regarding taking of jewellery and cash, she deposed as PW3 that accused Sehdev @ Deva told her to bring money and jewellery from her house and accompany him. Thereafter, she went to her house and picked up Rs.65,000/- in cash and gold jewellery for about 11 tolas from her house and she met again to Deva and thereafter both of them arrived at Anand Vihar, ISBT. As PW1, she deposed that on 25.01.06, she took Rs. 60,000/- and gold jewellery with her on asking accused Deva and went to School where Deva met her outside the school and took her to Anand Vihar, Bus Stand. In cross examination, she deposed that she met accused Deva on 25.01.06 at Park SC No.59/10 State v. Sehdev @ Deva Page No. 8 of 15 nearby her school. Thus, there is contradiction about the cash amount. Previously, she deposed that she took Rs.65,000/- and in the present case, she deposed that she took Rs. 60,000/-. Regarding place of meeting she deposed inconsistently, as initially she has stated that she met accused Deva in front of the school and in cross examination, she has stated that she met him in front of park near her house. On the point of use of telephone, Kumari Nazma as PW3 deposed that on their reaching at Anand Vihar, ISBT, accused Deva called Pintu through phone. As PW3, she deposed that accused Deva rang up to his friend Pintu and called him at Anand Vihar Bus Stand. In cross examination she made volta face when she deposed that she did not recollect whether accused Sehdev @ Deva was having any mobile or not. On the point of threat by Sehdeva @ Deva, I find that statement of prosecutrix Ex.PW3/A recorded U/s 164 Cr.P.C. is silent about the threat given by accused Sehdev @ Deva. As PW3, she deposed that when she refused to accompany Pintu, Deva threatened her to kill his brother, if she did not accompany Pintu. Her statement as PW1 made in the present case is again silent about the threat as allegedly extended by accused Deva to kill his brother. These contradictions in my view are on material points and create doubt about the truthfulness of the testimony of prosecutrix Nazma.
16. My decision in this regard finds support by SC No.59/10 State v. Sehdev @ Deva Page No. 9 of 15 principles of law laid down in case of Babu Lal and Others v. State, 1994 JCC 111 wherein, the Delhi High Court observed that:
"10. As far as these appellants, namely Babu Lal, Arjun Das and Leela Ram are concerned, there are material contradictions in the statements of the two injured, Om Parkash and Bhagwan Das who are the real brothers. The other alleged eye witnesses have also contradicted themselves on the most material points and the contradictions cannot be said to be minor and have occurred on account of passage of time. Moti Lal, PW13 on whose statement the case was registered has also not supported the case of prosecution in as much as he has denied that he has seen the incident or he saw these appellants giving injuries to the injured.*** There are serious lapses in the prosecution story in connecting these appellants with the offence. The story put up by the prosecution as far as these appellants are concerned, is unbelieavable and doubtful."
17. Secondly, the complainant Mohd. Abbas did not implicate accused Sehdev @ Deva in his testimony. He inter alia stated that on 25.01.06, her daughter went to her school in the morning and did not return back and when she could not be searched, he informed the police by dialing number
100. Police recorded his statement Ex.PW2/A and he raised suspicion upon Pintu and on checking he also found that her daughter had taken jewellery and Rs.60,000/- with her. Later on, police informed that her daughter and Pintu had been recovered. Police interrogated accused Pintu who told that Sehdev, accused present in the court, was also involved with him. He was arrested and his arrest memo Ex.PW2/B was SC No.59/10 State v. Sehdev @ Deva Page No. 10 of 15 signed by him. Thus, complainant neither levelled any allegation against accused Sehdev @ Deva nor deposed against him. The part of the statement that Pintu was interrogated by police in his presence and he implicated accused Sehdev @ Deva is not admissible in evidence, as it was the statement made before the police and hit by section 25 of the Indian Evidence Act, as nothing i.e. cash or jewellery was recovered from his possession or on the information disclosed by him, which could have made that part of his statement admissible in evidence U/s 27 of the Indian Evidence Act. This provides benefit to the accused.
18. Thirdly, as per principles of law laid down in case Anil Pukhan vs. State of Assam, AIR 1993 SC 1462, conviction can be based on solitary testimony provided, it is reliable, trustworthy and consistent. In the present case I do not find testimony of prosecutrix Nazma as consistent, reliable and trustworthy. This has created suspicion and doubt about the genuineness of the prosecution case.
19. Fourthly, as per provisions of Section 361 IPC, which defines kidnapping from lawful guardianship, taking or enticing any minor under 16 years of a age if a male or under 18 years of age if a female out of the keeping of the lawful guardian of such minor or without the consent of guardian is necessary. In the present case, my ld. predecessor vide her judgment dated 30.03.2009, had opined that on the date of SC No.59/10 State v. Sehdev @ Deva Page No. 11 of 15 incident i.e. 25.01.06, the age of prosecutrix appeared to be about 18 years. That judgment of my ld. predecessor has become final as neither the prosecution has filed any document to the contrary nor brought any fact regarding pendency of any appeal before appellate court. I also hold the same view. Resultantly, the provisions of section 361 IPC which defines kidnapping from lawful guardianship and provisions of section 363 IPC which provides punishment for kidnapping are not applicable of the facts of present case. This has further demolished the prosecution case.
20. Fifthly, as per provisions of section 362 IPC which defines abduction compelling, by force or inducement by any deceitful means of victim/prosecutrix for going to any other place, is necessary. In the present case, testimony of prosecutrix itself shows that she accompanied with the accused of her own. Accused never used any force or never misrepresented her. She was capable of knowing what was good for her and what was bad for her. She was not confined at any secret or lonely place. She was having freedom to make calls from PCO. She left the house of her own accord to marry a person of her choice. Therefore, I am of the view that prosecution has failed to establish the basic ingredients required for proving the case of kidnapping or abduction or inducing a women to compel her marriage etc. as defined U/s 366 IPC. This has further demolished roots of the prosecution case.
SC No.59/10 State v. Sehdev @ Deva Page No. 12 of 15
21. Sixthly, the prosecution has failed to produce or prove any document of ownership of 11 tolas of told or any material that complainant was having Rs.60000/- in cash. Thus, it could not be established by prosecution beyond any suspicion and reasonable doubt that complainant was owner and in possession of 11 tolas of told and Rs.60000/- in cash and accused had taken that gold and cash from the prosecutrix. This has further created dent in the prosecution case.
22. Seventhly, testimonies of other PWs, namely PW2 Sh. S K Sharma, TGT, who produced record of prosecutrix Nazma, PW4 HC Prakash Veer who deposited the pullanda to FSL, Rohini and made entries in the record, PW5 W/C Ms. Geeta who brought the prosecutrix for medical examination in SDN Hospital, PW6 Ct Damodar Singh who went to District Etah with IO, PW7 HC Raj Kumar who took the rukka for registration of the case, PW8 Ct Dharmender who went to District Etah with IO and arrested co-accused Pintu; PW9 HC Mool Chand who got the accused Pintu and prosecutrix medically examined, PW10 ASI Retd. Deen Mohd. who is the IO and conducted the investigation, PW11 Raj Pal Singh, who produced the record of accused Sehdev, PW12 Ms. Poonam Chaudhary who proved the statement of prosecutrix u/s 164 Cr.P.C. as Ex.PW12/A; PW13 Dr. Bhagwat Prasad who medically examined prosecutrix vide MLC Ex.PW13/A and SC No.59/10 State v. Sehdev @ Deva Page No. 13 of 15 PW14 Dr. Richa Singhal who internally examined prosecutrix are witnesses of formal nature and in the absence of reliable and trustworthy testimony of prosecutrix and complainant, their testimonies, ipso facto, are not sufficient to prove the prosecution case.
23. Eighthly, my attention goes to a case reported as Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, it was inter alia held by Apex court that:
"It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt."
The principles of law laid down in above case are applicable on the facts of present case and therefore, it is held that accused is entitled to get benefit of doubt as in the present case two views, one, leads to his innocence and another leads to his involvement in the crime are possible.
24. Lastly, it is one of the basic principles of criminal jurisprudence that let hundreds of criminal may go unpunished but one innocent person should not be punished. In the present case, it would be just fair and appropriate, if accused is given benefit of doubt as the prosecution has failed to prove its case against him beyond any suspicion or reasonable shadow of doubt.
SC No.59/10 State v. Sehdev @ Deva Page No. 14 of 15 CONCLUSIONS
25. Consequent upon the above reasons, discussion and evidence on record and particularly discussed herein above, it is held that prosecution has failed to prove its case against accused Sehdev @ Deva beyond any suspicion of reasonable doubt that he either committed offence of kidnapping from lawful guardianship as punishable U/s 363 IPC or he committed offence of kidnapping, abducting or inducing women to compel her marriage, etc. as defined and punishable U/s 366 IPC. Therefore, accused is acquitted for the offences punishable under section u/s 363/366 IPC by giving him benefit of doubt.
26. However, accused is directed to furnish his personal bond for a sum of Rs.10,000/- with one surety of like amount as per provisions of Section 437 A of Cr.P.C. for a period of six months for ensuring his presence before the Appellate Court.
27. After furnishing of bail/surety bonds, file be consigned to Record Room.
Announced in the open court on 04.08.2012 (DR. T.R. NAVAL) Additional Sessions Judge-02 East District:KKD Courts:Delhi SC No.59/10 State v. Sehdev @ Deva Page No. 15 of 15