Delhi District Court
The State vs . on 7 January, 2017
IN THE COURT OF SH. PAWAN KUMAR MATTO:
ADDL. SESSIONS JUDGE01 (WEST):
TIS HAZARI COURTS: DELHI.
SC No.: 219/15 (Old No.)
56935/2016 (New No.)
FIR No.: 26/13
PS : Patel Nagar
U/S : 363/366 of IPC
The State
(Govt. of NCT of Delhi)
Vs.
Rahul Kumar
S/o Sh. Shankar Singh
R/o Prem Nagar, Gali no.7,
New Delhi.
(Permanent address : Baniyahir No.4, PS Jharia,
Distt. Dhanbad, Jharkhand. ...... Accused
Date of Institution : 26.11.2015
Date of arguments : 07.01.2017
Date of judgment : 07.01.2017
JUDGMENT:
1 Brief facts of the case are that, in the case in hand, the FIR has been registered on the complaint of the father of the prosecutrix 'A' (presumed name of the father of prosecutrix), Ex.PW2/A, wherein, he has alleged that he lives on the address, as mentioned in his complaint Ex.PW2/A and his daughter i.e. prosecutrix 'L' (presumed name of the prosecutrix), aged about 16years, has disappeared from his house on dated 23.01.2013 at 2.00 pm and he suspected that accused Rahul Kumar, who is living in his neighbourhood, has induced & kidnapped away to the prosecutrix, as accused Rahul FIR No. 26/13 PS Patel Nagar State Vs. Rahul Kumar Page 1 of 9 Kumar has also disappeared from his house. On such complaint of the father of the prosecutrix recorded on 25.01.2013, FIR bearing no. 26/13 was registered on dated 25.01.2013 u/s 363 of IPC in PS Patel Nagar. On recovery of the prosecutrix, her statement U/s 164 of Cr.PC was recorded, wherein, she has stated that her stepmother used to abuse her, so, she left the house of her parents & she was going to her village to meet her father and by chance, accused Rahul met her in the train & she told her that she has left her house, but he asked her to return her house, so, she was not induced & kidnapped away by accused Rahul Kumar and the accused was arrested on 28.01.2013 & thereafter, he was released on bail on dated 04.03.2013.
2 On completion of the investigation, the chargesheet was filed U/s 363/366 of IPC and copy of charge sheet was supplied to the accused. The case was committed to the Court of Sessions & the same was assigned to this Court. On finding of the primafacie case, the charges U/s 363/366 of IPC were framed against the accused, to which, the accused pleaded not guilty and claimed trial. Accordingly, the accused was put on trial and the matter was fixed for the evidence of the prosecution.
3 In order to prove its case, prosecution has examined two witnesses today.
4 Prosecutrix 'L' has been examined as PW1. She has deposed that accused has not taken her anywhere and deposed that " YE LE KAR NAHI GAYA THA MAIN KHUD HI JHARKHAND GAYI THI APNI MARZI SE GHAR SE NIKAL GAYI THI" and also deposed that accused Rahul did not stay with her in Jharkhand and she does not remember the date of her marriage and she has admitted that she stayed in Jharkhand for about one week. She has also deposed that her papa had gone to take her from Jharkhand and she was recovered from the house of accused. She has stated that she does not know that she was 16years of age at the time of alleged occurrence. She has admitted that Ld. MM had FIR No. 26/13 PS Patel Nagar State Vs. Rahul Kumar Page 2 of 9 recorded her statement which is Ex.PW1/A and she has also correctly identified her signatures thereon at A to F. This witness has also been crossexamined by Ld. Counsel for accused and during her crossexamination by Ld. Counsel for accused, she has admitted it to be correct that accused Rahul Kumar has never induced or enticed her to come to his house and she has never been kidnapped by the accused and she has admitted it to be correct that she had voluntarily gone to the house of the accused & she had voluntarily married with the accused and they are leading good matrimonial life & they are blessed with a son from such matrimonial relation.
5 Whereas, the complainant, who is the father of the prosecutrix 'A' (presumed name of father of prosecutrix) has been examined as PW2 and he has deposed that he has eight children and the prosecutrix eloped away with the accused Rahul on 23.01.2013. At that time, she was about 17 years of age. He had filed the complaint which is Ex.PW2/A & he has identified his signature thereon at point A and further deposed that he had received a telephonic call from the father of the accused, who had told him that her daughter i.e. prosecutrix was in Jharia, and they have brought the prosecutrix at Delhi through Police. This witness has also been crossexamined by Ld. Counsel for accused and during his crossexamination by Ld. Counsel for accused, he has admitted it to be correct that prosecutrix had gone with the accused voluntarily without use of any force and he has deposed that he does not have knowledge that the prosecutrix was of the age of 18 years, when, she left his house and admitted it to be correct that the prosecutrix is living with the accused in view of solemnization of her marriage with accused and he has admitted that his marriage was solemnized in the year 1982 and also admitted it to be correct that prosecutrix was born after the year 78 years after his marriage and also admitted it to be correct that he had lodged the FIR in view of some misunderstanding.
6 I have heard the Ld. Counsels for the parties.
FIR No. 26/13 PS Patel Nagar State Vs. Rahul Kumar Page 3 of 97 After examination of PW1 & PW2, the Ld. APP for the State has submitted that the matter may be adjourned for examination of the remaining prosecution's witnesses, whereas, Ld. Counsel for accused has opposed the same and submitted that since, the prosecutrix & her father (complainant) have been examined & since the prosecutrix & the complainant have failed to support the case of the prosecution, so, he has prayed for closing the evidence of the prosecution & also prayed for acquittal of the accused.
8 Since, the prosecutrix has been examined & crossexamined today and the perusal of the record shows that, in the case in hand, FIR was registered on the statement of the father of the prosecutrix, wherein, he suspected that prosecutrix was kidnapped away by accused Rahul Kumar and he has filed his complaint on dated 25.01.2013, which is Ex.PW2/A. Since, this complainant had disclosed the age of prosecutrix about 16years at the time of filing this complaint Ex.PW2/A, but, at the time of crossexamination of this complainant, he has admitted that his marriage was solemnized in 1982 and the prosecutrix was born after 7/8 years of his marriage. Thus, on the date of alleged kidnapping i.e. on 23.01.2013, the prosecutrix was of more than 18 years of age. Since this complainant, during his crossexamination, has admitted that the prosecutrix had gone with accused voluntarily & without any use of force and since the prosecutrix, during her examination in the court, has categorically deposed that she has never been induced or kidnapped away by accused Rahul Kumar & she had voluntarily gone with accused, so, in the given circumstances, the testimonies of PW1 & PW2 are inconsistent & contradictory on the material points and from the contents of complaint Ex.PW2/A, and from the testimony of the prosecutrix, it is clear that the testimony of prosecutrix is contradictory to her statement recorded u/s 164 of Cr.PC, which is Ex.PW1/A, as at the time of recording of that statement, she has deposed her age as 16years and at the time of recording of her statement today in the court she has disclosed her age as 25years. So, in the considered FIR No. 26/13 PS Patel Nagar State Vs. Rahul Kumar Page 4 of 9 opinion of this court, it will be futile to adjourn the matter for examination of the remaining witnesses of the prosecution. Accordingly, the evidence of the prosecution is closed by order, as, in the considered opinion of this court, no fruitful purpose would be served to examine the remaining witnesses of the prosecution, who are formal in nature, as the case of the prosecution cannot be resulted in conviction of the accused, even if remaining witnesses of the prosecution are allowed to be examined.
9 Since, nothing incriminating evidence has come on the record against the accused Rahul Kuamr, therefore, the statement of the accused U/S 313 Cr.P.C is dispensed with.
10 Since, Their Lordship of the Hon'ble Supreme Court was pleased to hold in case 'Suraj Mal Vs. State (Delhi Administration) AIR 1979 Supreme Court 1408' was pleased to hold that:
"it is well settled that where witnesses make two inconsistent statements in their evidence either on one stage or at two stages, the testimony of such witness become unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on the evidence of such witness."
11 Similarly, Their Lordship of the Hon'ble Supreme Court in case titled as 'Rai Sandeep @ Deepu Vs. State (NCT of Delhi) and Hari Singh Vs. State (NCT of Delhi) (2012) 8 SCC 21'.
"In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, therefore, be FIR No. 26/13 PS Patel Nagar State Vs. Rahul Kumar Page 5 of 9 unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the crossexamination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have corelation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar test to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in FIR No. 26/13 PS Patel Nagar State Vs. Rahul Kumar Page 6 of 9 material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
12 Their lordship of High Court of Delhi in Rameshwar Giri V. State, 211 (2014) Delhi Law Times, 508, was pleased to observe : "16. As held by the Supreme Court in AIR 1965 SC 942, S. Varadarajan V. State such an act would tantamount to 'taking'. The observations of the Apex Court in this context are as under:
"The offence of 'kidnapping from lawful guardianship' is defined thus in the first paragraph of Section 361 of the Indian Penal Code:
"Whoever taken 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 such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship'
8. It will thus be seen that taking or enticing away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping.........11. It must, however, be borne in mind that there is a distinction between 'taking : and allowing a minor to accompany a guard ourselves from laying down that in no conceivable circumstance 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 quardian. 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.
12. It would, however, be sufficient if the prosecution establishes that through 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 FIR No. 26/13 PS Patel Nagar State Vs. Rahul Kumar Page 7 of 9 the keeping of the lawful guardian merely because after she has actually left 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 fulfillment 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'."
"17. This version is further fortified by the fact that the victim was admittedly known to the accused as he was residing in the same street since the last 2 years. The fact that the accused was known to the victim is also admitted by both PW6 and PW7 i.e. the mother and father of the victim. PW5 had accompanied the appellant for sightseeing; they did sightseeing for one hour in Delhi; then by a TSR, the appellant took her to the railway station; people were gathered there to purchase tickets. Tickets were purchased by the appellant from the railway station from where he took her to Bihar which would be a more than one day journey. The victim stayed in the village of the appellant 23 days. She was never threatened by the persons living in that house/ 56 ladies were also present. Other persons from the village also came to meet her. The MLC of the victim also shows that there was no injury upon her person. This corroborates the argument of the Learned Counsel for the appellant that the victim was not subjected to any force.
13 Since, in the case in hand, FIR was registered on the statement of the father of the prosecutrix, wherein, he suspected that prosecutrix was kidnapped away by accused Rahul Kumar and he has filed her complaint on dated 25.01.2013, which is Ex.PW2/A. Since, this complainant had disclosed the age of prosecutrix about 16years at the time of filing this complaint, but, at the time of crossexamination of this complainant, he has admitted that his marriage was solemnized in 1982 and the prosecutrix was born after 7/8 years of his marriage. Thus, the prosecutrix would have been born in 1989 or 1990 and on the date of alleged kidnapping i.e. on 23.01.2013, the prosecutrix was of more than 18 years of age. Since this complainant, during his crossexamination, has admitted that the prosecutrix had gone with accused voluntarily & without any use of force and since the prosecutrix (during her examination in the court & also during her crossexamination) has categorically deposed in the Court that she has never been induced or kidnapped away by FIR No. 26/13 PS Patel Nagar State Vs. Rahul Kumar Page 8 of 9 accused Rahul Kumar & she had voluntarily gone with accused, so, in the given circumstances, the testimonies of PW1 & PW2 are inconsistent & contradictory on the material points and from the contents of complaint Ex.PW2/A. 14 So, taking into consideration the material inconsistencies & contradictions in the testimonies of PW1 & PW2, this court is inclined to hold that the testimonies of PW1 & PW2 are inconsistent, suspicious, unreliable & untrustworthy, so, the same do not inspire any confidence, and since, the charges against this accused were framed u/s 363/366 of IPC, and the prosecutrix has admitted, when examined in this Court, that she has been never been enduced or kidnapped by accused Rahul and she had voluntarily gone with accused and she has disclosed her age as 25years today & from the cross examination of PW2, as discussed above, it may be inferred that the prosecutrix was more than 18years of age. Therefore, I am inclined to hold that the prosecution has failed to prove that accused has committed the offences punishable u/s 363/366 of IPC beyond reasonable doubt. Accordingly, accused Rahul Kumar is acquitted of the charges framed against him. The accused Rahul Kumar is directed to furnish the bail bond in the sum of Rs.5,000/ with one surety of like amount, as per the provision of Section 437(A) of Cr.P.C, for next six months to ensure his presence in the Hon'ble appellate court and on filing of bail bond and surety bond, the file be consigned to the Record Room.
Announced in the open court (PAWAN KUMAR MATTO)
today i.e. on 07.01.2017 Additional Sessions Judge01(West)
Tis Hazari Courts, Delhi
FIR No. 26/13 PS Patel Nagar State Vs. Rahul Kumar Page 9 of 9