Delhi District Court
State vs Jitan Kumar on 5 February, 2015
IN THE COURT OF SH. PARVEEN SINGH,
ADDITIONAL SESSIONS JUDGE03(NE), ROOM NO.53,
KARKARDOOMA COURTS, DELHI.
SC No. 58/13
Unique case ID no. 02402R0371852013.
FIR No. 231/13
PS Sonia Vihar
U/s 363/366 IPC.
State
Versus
Jitan Kumar,
S/o Jivan Shah,
R/o Village Rakia, PS Bihra,
Distt. Sehrsa, Bihar.
Also at:
E2/114, Gali No. 5,
Sonia Vihar, Delhi. ....Accused.
Date of Committal : 20.12.2013.
Date of arguments : 05.02.2015.
Date of pronouncement : 05.02.2015.
FIR No. 231/13
PS Sonia Vihar 1 of 23
JUDGMENT
The accused had been sent up for trial on the allegations that on 15.09.2013 at around 11.00 a.m., from the area of PS Sonia Vihar, the accused kidnapped Kumari S from the lawful guardianship of her parents namely Sher Singh and Smt. Birma Devi.
2. It was alleged by the complainant in his complaint Ex.PW2/A that prosecuterix S was his youngest daughter who on 15.09.2013 at about 11.00 a.m. left the house stating, that she was going to photo studio at Shanibazar Chowk, but did not come back. He tried to trace S but could not find her and he suspected that her daughter S had been kidnapped by Jitan Kumar. On the basis of this complaint, the IO prepared rukka Ex.PW7/1. On the basis of the rukka, duty officer registered FIR mark PW4/A. After the registration of FIR, the investigation was assigned to PW7 Mohd. Ismail. On 17.09.2013, SI Mohd Ismail came to know that the accused had been apprehended by the police of PS Alam Ganj Patna and at that time, prosecuterix was also with the accused. Thereafter he, alongwith HC Manoj and the complainant, went to PS Alam Ganj. They reached at PS Alam Ganj on FIR No. 231/13 PS Sonia Vihar 2 of 23 18.09.2013 and accused Jitan was found present in PS Alam Ganj alongwith a girl (prosecuterix S). After interrogation, SI Mohd. Ismail arrested accused Jitan vide arrest memo Ex.PW2/B and conducted personal search of the accused vide memo Ex.PW2/C. The accused produced before SI Mohd Ismail, one marriage certificate Ex.PW3/D1 which was seized by him vide memo Ex.PW5/1. The prosecuterix S and the accused were brought to Delhi and were medically examined. Her medical examination documents are Ex.C1 and Ex.C2. Prosecuterix S was then sent to Sanskar Ashram, Dilshad Garden. During the investigation, the IO collected the birth certificate of the prosecuterix S from Green Day Public School. According to it, the date of birth of the prosecuterix was 07.07.1997. On 20.09.2013, the statement of the prosecuterix u/s 164 Cr.P.C was recorded by the learned MM vide Ex.PW3/1. On 23.09.2013, the prosecuterix S was produced before CWC and on the directions of CWC, she was sent to Sanskar Ashram. After completion of the investigation, chargesheet was filed in this case.
3. On 04.01.2014, my learned predecessor framed charges FIR No. 231/13 PS Sonia Vihar 3 of 23 u/s 363/366 IPC against the accused to which the accused pleaded not guilty and claimed trial.
4. Thereafter, the prosecution examined 7 witnesses to prove its case.
5. PW1 is Manthan Singh, a clerk from Green Day Public School. He had brought the admission register and pasting file of the school. The register was containing admission details of students from the year 2005 till date. In the record, entry at sl. no. 38 was in respect of prosecuterix S. As per record, the date of birth of prosecuterix S was 07.07.1997. Girl S was given admission to the school on 04.04.2006 and she left the school on 09.04.2007. At the time of her admission, an affidavit was furnished by her father regarding her date of birth. The copy of affidavit was exhibited as Ex.PW1/A (OSR). The copy of admission register was exhibited as Ex.PW1/B (OSR).
6. PW2 is Sher Singh, the father of the prosecuterix S. He deposed that he had four children. Shobha was his youngest daughter and was born on 07.07.1997. She studied at home and thereafter in the year 2006, she was admitted in 3rd class in Green Day Public School, 5th FIR No. 231/13 PS Sonia Vihar 4 of 23 Pushta. Accused Jitan Kumar used to reside in the same locality and in the same house where his son Rajnish was residing as a tenant. His daughter used to go to that house to meet her sisterinlaw. On 15.09.2013, about 11.00 a.m., his daughter left the house stating that she was going to collect photographs from photographer namely Shukla Ji. Thereafter, at about 12.30/01.00 p.m., his wife informed him that his daughter S had not returned. He came to know that Jitan Kumar had taken his daughter in a car and thus, he approached the police and lodged complaint Ex.PW2/A. He accompanied police to Patna as he had received a call from PS Alam Ganj, Patna, informing him that his daughter and accused Jitan were there. He reached PS Alam Ganj with the police and identified his daughter. The accused was also present there and in his presence, the accused was arrested. The witness identified his signatures on Ex.PW2/B. He further deposed that he had no documentary proof of date of birth of his daughter S. At the time of admission of his daughter in school, he had given affidavit Ex.PW1/A regarding date of birth of his daughter. He identified his signatures at point A on Ex.PW1/A. He further deposed that from the hospital, his daughter was sent to Nari Niketan. He approached Nari Niketan to FIR No. 231/13 PS Sonia Vihar 5 of 23 bring his daughter. At first, his daughter refused to come home and when he approached second time, his daughter inquired whether she would be beaten at home and he assured that no such thing would happen and then, his daughter returned home with him.
7. PW3 is prosecuterix S. She deposed that the accused used to reside on the back of her house and became friendly with her. On 15.09.2013, she was going to the shop of a photographer to collect photographs. On the way, accused met her and told her that her mother was summoning her and that he would take her to her mother. He forcibly made her to sit in a Maruti Van. She inquired of the whereabouts of her mother and he told her that her mother was standing at 5th Pushta. The accused made her smell some intoxicant and she became unconscious. On that pretext, the accused had taken her to railway station and then to his native village where she regained her consciousness. When she stated that she was not inclined to marry the accused, he threatened to kill her and thus, she got married to the accused. On 3rd day of her arrival in Bihar, her father alongwith police reached that place and rescued her. She narrated the entire facts to the police who recorded her statement. From there, she was brought to FIR No. 231/13 PS Sonia Vihar 6 of 23 Delhi and her statement was recorded before a Magistrate. A sealed envelope bearing seal of HS, stated to be containing statement u/s 164 Cr.P.C recorded by Ms. Harleen Singh was opened, and shown to the witness. The witness admitted her signatures at point A on her statement. The statement u/s 164 Cr.P.C was exhibited as Ex.PW3/1. She was specifically asked, why she gave the kind of statement which she had given before the learned MM and she stated, that she had given that statement because the accused had threatened that if she did not give a statement in his favour, he would kill her.
8. PW4 is Ct. Ramesh Chandra. On 16.09.2013, he was handed over rukka Ex.PW2/A and copy of FIR Ex.PW4/A by the duty officer with the directions, to hand them over to the IO at E2/50, Gali No. 2, Sonia Vihar, 5th Pushta. He visited there and handed over those document to the IO.
9. PW5 is HC. Manoj Bhati. He is a witness who accompanied the IO and the complainant to Bihar wherefrom the accused was arrested.
10. PW6 is Smt. Birma Devi, the mother of the prosecuterix FIR No. 231/13 PS Sonia Vihar 7 of 23 S. She deposed on 15.09.2013, at around 12 noon, she was at her house when her daughter S had left the house stating that she was going to collect photographs from photographer. At that time, her daughter S was accompanied by Bhawna who was daughter of her another daughter Suman. After some time, Bhawna came home and she was crying. Bhawna told her that a boy who was residing near the house of her son and was named Jitan had taken her daughter S. Her husband and other family members went to the house of Jitan and his room mates disclosed Jitan's address. Thereafter, they went to police station and on 16.09.2013, lodged a complaint. On 17.09.2013, her husband alongwith police personnel went to Bihar and brought her daughter S back. She identified accused Jitan correctly. She further deposed that the accused had abducted her daughter by threatening her and inducing her.
11. PW7 is SI Mohd. Ismail, the IO of the case. His testimony will be considered at later stage as and when required.
12. On 28.01.2015, statement u/s 313 Cr.P.C of the accused was recorded and the accused preferred not to lead any evidence in his FIR No. 231/13 PS Sonia Vihar 8 of 23 defence.
13. I have heard learned Addl. PP for the State as well as learned counsel for the accused and have perused the record very carefully.
14. Ld. Addl PP has contended that the statements of PW2 and PW6 i.e. the parents of the prosecuterix and the prosecuterix who appeared as PW3, have categorically established that the accused had abducted prosecuterix under threats and misrepresentation. He has further contended that the document Ex.PW3/D1 has categorically established that the accused had married the prosecuterix. The prosecuterix has also stated that after being kidnapped, under threats of the accused, she had got married to the accused and thus, prosecution has been successful in establishing not only the offence u/s 363 IPC but the aggravated offence u/s 366 IPC. He has further contended that by the statements of PW2, PW6 and PW7 as well as from the documents Ex.PW7/4, Ex.PW1/A and Ex.PW1/B, it clearly stands established that the date of birth of the prosecuterix S was 07.07.1997. Meaning thereby, that on the day of incident, the prosecuterix was minor. FIR No. 231/13
PS Sonia Vihar 9 of 23
15. On the other hand, learned counsel for the accused has contended that the statements PW2 and PW6 are not reliable. He has further contended that in fact the prosecuterix was in love with the accused and of her own free will, she had eloped with the accused in order to get married to him. He has further contended that the document Ex.PW7/4 cannot be relied upon to arrive at the age of the prosecuterix at the time of the incident because there is no valid document in a form of date of birth certificate or the certificate of the first school she had attended. He has further contended that the prosecuterix had stated herself to be of 19 years at the time of her statement u/s 164 Cr.P.C before the Ld. MM and before the doctor at the time of her medical examination. He has therefore contended that the prosecution has failed to prove the age of the prosecuterix to be below 18 years and therefore, in view of the consent of the prosecuterix, no offence is made out.
16. I have considered the rival contentions and the evidence on record.
17. The first question which arises is, whether the accused has committed the offence of kidnapping?
FIR No. 231/13
PS Sonia Vihar 10 of 23
18. Under the IPC, there are two kinds of kidnapping, one is kidnapping from India as defined u/s 360 IPC, and the other is kidnapping from lawful guardianship as defined u/s 361 IPC and both kinds of kidnapping are punishable u/s 363 IPC and the aggravated form of abducting or kidnapping of a woman in order to compel her marriage etc. has been made punishable u/s 366 IPC.
19. The accused has been charged for both the sections i.e. 363 and 366 IPC. Meaning thereby, for securing a conviction in any of the sections, the prosecution will have to prove that the accused had committed an offence as defined u/s 361 IPC and had kidnapped the prosecuterix from lawful guardianship. The basic and the main ingredient for section 361 IPC is, that the person kidnapped should be a minor and the minority age for the purposes of section 361 IPC for males is under 16 years and for females is under 18 years.
20. Therefore, the question arises that, whether, at the time of her alleged kidnapping from lawful guardianship, the prosecuterix was minor?
21. The prosecution has sought to prove that on the date of FIR No. 231/13 PS Sonia Vihar 11 of 23 incident, the prosecuterix was minor by way of documentary evidence as well as oral evidence.
22. The documentary evidence has come in the form of the certificate issued by Green Day Public School which is Ex.PW7/4. It is also in the form of the admission register of the school (Ex.PW1/B) and the affidavit of her father given at the time of her admission in this school (Ex.PW1/A).
23. The oral evidence has come in the form of testimony of PW2. He deposed that the prosecuterix S was his youngest daughter and was born on 07.07.1997. She studied at home and thereafter in the year 2006, she was admitted in Green Day Public School in third standard. He further deposed that he had no documentary evidence of date of birth of his daughter as she was born in village. At the time of admission of his daughter, he had given an affidavit regarding date of birth at the school. He identified his signatures on a document Ex.PW1/A at point A which is stated to be a shapath patra.
24. During his cross examination on this point, he deposed that his daughter was born in a village and she studied there upto class FIR No. 231/13 PS Sonia Vihar 12 of 23 2nd. He did not remember when he had brought his daughter S to Delhi. He denied that he had given a false affidavit of date of birth of his daughter or that Ex.PW1/A was a false and fabricated document. He denied that his daughter was an adult and she had accompanied the accused as per her own wishes.
25. PW3 is the prosecuterix. She has not deposed regarding her age except that, when her particulars were recorded at the time of recording of her examination in chief, she stated herself to be 17 years old.
26. PW6 is Smt. Birma Devi. She had also not stated anything about the age of her daughter. During her cross examination on this point, she stated she did not remember the date or year of her marriage. She did not know the year of birth of her daughter S or the date of birth of her daughter S.
27. I have carefully considered the testimonies of PW2, PW3 and PW6.
28. It is to be noticed that the mother of the prosecuterix who appeared as PW6 failed to disclose either the year of birth or date of FIR No. 231/13 PS Sonia Vihar 13 of 23 birth of her daughter/ prosecuterix. This appears to be very uncharacteristic of a mother. The father of the prosecuterix stated that the prosecuterix was born on 07.07.1997 but during his examination in chief, he stated that prior to admission in Greenday Public School, the prosecuterix studied at home. However, during his cross examination, he deposed that upto 2nd class, the prosecuterix studied in the village and thereafter, he brought her to Delhi. Not only this, in his initial complaint Ex.PW2/A, he stated the age of the prosecuterix to be around 17 years and he stated that prosecuterix had passed class 6th. According to the records of Green Day Public School, wherefrom document Ex.PW7/4 was issued, the prosecuterix only studied in that school for one year i.e. from 2006 to 2007 and if thereafter, she had studied and passed 7th class then where had she studied and what was her date of birth recorded in that school, should have been brought before the court but it was not done for the reasons best known to the prosecution.
29. It is also to be noticed that Green Day Public School, in view of the statement of her father that she studied in village upto 2nd class, cannot be said to be her first school where she was admitted.
30. I also noticed that the admission of the prosecuterix to FIR No. 231/13 PS Sonia Vihar 14 of 23 this school was done only on the basis of a purported affidavit which is Ex.PW1/A in which father of the prosecuterix declared her date of birth to be 07.07.1997. However, I find that this is not an affidavit at all as it was neither attested by an oath commissioner or notary public or a magistrate. It was not even stated in the school records that they had made some kind of verification regarding the contents of the affidavit. That being the case, the contents given in that affidavit stand in contradiction to Ex.PW2/A where the same father had stated the prosecuterix to be of 17 years on the date of incident whereas as per this affidavit, she should have been of 16 years of age.
31. I accordingly find that it will be highly unsafe to consider this school record to be a conclusive proof of the age of the prosecuterix. It is more so, because this stands in contradiction to the first stand of the prosecuterix before the learned MM where during recording of her statement u/s 164 Cr.P.C, in answer to a specific query about her age, the prosecuterix had stated herself to be of 19 years. It also stands in contradiction to the MLC (Ex.C1) of the prosecuterix and the medical examination report Ex. C2 as in both these documents, the prosecuterix had stated her age to be 19 years. FIR No. 231/13
PS Sonia Vihar 15 of 23
32. Therefore, considering these contradictions in the statement of PW2 regarding the age of prosecuterix, the fact that PW6 who is the mother of the prosecuterix could not even tell about the year or date of birth of the prosecuterix, the fact the the prosecuterix had stated herself to be of 19 years before the Ld. MM and the doctor who had conducted her medical examination and the fact, that the first school's records of the prosecuterix and the subsequent school's records of the prosecuterix have been withheld from the court; I find that the prosecution, which had to prove beyond all reasonable doubts that on the day of incident the prosecuterix was below 18 years of age, has so failed to prove this fact. In this regard, reliance is placed on judgment of Hon'ble Supreme Court in State of Karnataka v. Sureshbabu Puk Raj Porral, 1994, Cri. LJ 1216 (1) and judgment of Hon'ble High Court of Himachal Pradesh in Suresh Kumar v. State of HP, 2002 Cri LJ 498.
33. The next question is, whether the accused had abducted the prosecuterix in order to compel her to marry and had in fact got married to the prosecuterix and thus, committed an offence u/s 366 FIR No. 231/13 PS Sonia Vihar 16 of 23 IPC?
34. In this regard, the prosecution has sought to rely upon three witnesses. One is PW2 Sher Singh who is father of the prosecuterix. The second witness is the prosecuterix herself who appeared as PW3 and the third witness is PW6 Smt. Birma Devi, the mother of the prosecuterix.
35. Whether in fact, the accused had forcibly or under threats or under inducement or by deceitful means had taken the prosecuterix with him, could only have been deposed of by the prosecuterix. I say so, because at the time of the alleged abduction, neither PW2 nor PW6 were present. Their testimonies regarding this incident are based on presumptions and hearsay. The only person who could have known about it is PW3 i.e. the prosecuterix or Baby Bhawna, whose name as a witness to this incident came up for the first time during the testimony of PW6 Smt. Birma Devi. However, the said Baby Bhawna was neither examined by the IO nor arrayed in the list of witnesses and produced before the court as a witness. Therefore, the sole person to prove that she was abducted is the prosecuterix herself.
FIR No. 231/13
PS Sonia Vihar 17 of 23
36. The prosecuterix while appearing as PW3 deposed that on the fateful day, the accused met her and told her that her mother was summoning her and that he would take her to her mother. She further deposed that the accused forcibly made her to sit in a Maruti Van. The accused made her smell some intoxicant and she became unconscious. On that pretext, the accused had taken her to railway station and then to his native village (wrongly typed 'my native village' in the evidence whereas it should have been 'his native village') where she regained consciousness.
37. Now, this entire statement of the prosecuterix regarding her becoming unconscious and regaining consciousness at native village of the accused, is not believable. I say so because, the prosecuterix is not a a small child who could have been sedated and then carried by the accused, who is also not a very strong built person, through the crowded railway station to a train and then to his native village without anybody noticing that he was carrying or dragging an unconscious woman. It is also not believable in the light of the fact that the prosecuterix neither in her statement u/s 164 Cr.P.C nor in her subsequent statement u/s 161 Cr.P.C, which was recorded by the IO on FIR No. 231/13 PS Sonia Vihar 18 of 23 18.09.2013, had stated anything about her being sedated, becoming unconscious and then regaining consciousness on reaching the native village of the accused.
38. The prosecuterix has resiled from her statement u/s 164 Cr.P.C made before the Ld. MM. The effect of this will be discussed at later stage. However, her statement u/s 161 Cr.P.C, which was recorded on 18.09.2013, becomes important as in that statement, she had stated that the accused had induced her to go with him but she had nowhere stated that she had been sedated to the extent of unconsciousness or sedated at all.
39. Whether, the accused had induced or forced her has also to be considered in the light of her rest of the testimony and her cross examination.
40. During her examination in chief, she was shown her statement u/s 164 Cr.P.C, which is Ex.PW3/1. In that statement, she had stated that she had gone with the accused on her own freewill and that she had not been forced by the accused and that she wanted to marry the accused. She was specifically asked in her examination in FIR No. 231/13 PS Sonia Vihar 19 of 23 chief that why she had given this statement and she stated, that she had given this statement because, the accused had threatened her that if she did not give statement in his favour, he would kill her.
41. She was cross examined by learned counsel for the accused and during that cross examination, she stated that the accused had threatened her not to disclose true facts to the Judge. She further deposed that when they left Bihar, after she had been recovered by police, she was kept with her father and after the accused was arrested, they were not allowed to have any conversation. She further deposed that from the date of arrest of the accused till the date of her cross examination, she never had any conversation with the accused. She then deposed that the accused had threatened her on the day when her statement was being recorded. At the time of threat being extended to her on the date of recording of her statement u/s 164 Cr.P.C, she was not accompanied by anyone and the accused was also alone and was standing outside the court room. She denied that the accused had never threatened her or that she was deposing falsely as on the date of alleged threat, the accused was in custody. During her cross examination, she also admitted that on the day when she was allegedly abducted, the FIR No. 231/13 PS Sonia Vihar 20 of 23 accused had gone to the ATM and withdrawn money and she was with him. She stated that she could not tell the amount of money withdrawn by the accused. Then, the contents of her statement mark DA were read over to the witness and she stated that this statement was also given under threat and was given as she was afraid of her life. Mark DA are the proceedings of CWC wherein the members of CWC had recorded that the prosecuterix did not want to go with her father and wanted to stay with the accused.
42. I have considered the evidence on this point and I find that the prosecuterix, when she was recovered, on her own freewill stated that she wanted to stay with the accused and this statement was not given under any threat or coercion of the accused. I further find that her statement u/s 164 Cr.P.C was made by her on her own freewill. I say so because, the prosecuterix has alleged that it was under a threat by the accused that she had given statement u/s 164 Cr.P.C which could support the accused.
43. Now, the question is, when could the accused have threatened her?
FIR No. 231/13
PS Sonia Vihar 21 of 23
44. Admittedly, after the arrest of the accused, the prosecuterix was with her father and the police had not allowed the accused and the prosecuterix to talk to each other. Therefore, during this period, there could have been no threats given by the accused. The prosecuterix then stated that the accused had threatened her when she was going to the court for giving her statement u/s 164 Cr.P.C and at that time, the accused was alone and standing outside the court room. However, this statement of the prosecuterix is false on the face of it because at that time, the accused was in judicial custody and could not have been standing alone outside the court and could not have extended any threats to the complainant/ prosecuterix to make a statement favouring him. After that, the prosecuterix was produced before CWC on 23.09.2013. There again, she stated that she wanted to stay with the accused. At that time, the accused was not present and it was very well known to the prosecuterix that the accused was in custody and could not have harassed her, but she still stated that she wanted to stay with the accused. Therefore, the statement u/s 164 Cr.P.C was not made under any threat or coercion. The fact that she admitted that when the accused had taken her, they had also gone to the ATM and accused had FIR No. 231/13 PS Sonia Vihar 22 of 23 withdrawn money from there, indicates that as they were requiring money for eloping, the accused would have told her that he would withdraw money from ATM and she also accompanied him. The fact that she admitted document Ex.PW3/D1 allegedly stated to be certificate of marriage was executed and even at court, she did not tell anybody or raised any alarm that she had been abducted or threatened to marry the accused, raises doubts about the testimony of the prosecuterix as made before the court. Thus, her testimony before the court that she was forcibly abducted by the accused is not trustworthy.
45. In view of the above observations, I find that the prosecution has failed to prove its case against the accused beyond all reasonable doubts. The accused is accordingly acquitted of the charges framed against him. His bail bond stands cancelled. Surety stands discharged. File be consigned to the record room.
Announced in open court (Parveen Singh)
today on 05.02.2015 Additional Sessions Judge03
(This judgment contains 23 pages (NE): Karkardooma Courts,
and each page bears my signatures.) Delhi.
FIR No. 231/13
PS Sonia Vihar 23 of 23