Delhi District Court
State vs . Arif on 6 February, 2015
IN THE COURT OF SHRI SUNIL GUPTA, M.M (NE)
KARKARDOOMA COURTS, DELHI
FIR No. : 330/11
U/s : 363 IPC
P.S : Seelampur
State Vs. Arif
Unique Case ID No. 02402R045552012
J U D G E M E N T
1. Sl. No. of the case : 300/14 (RBT) 2. Date of institution of the case : 13.02.2012 3. Name of complainant : State 4. Date of commission of offence : 27.08.2011
5. Name of accused, parentage & address : Arif s/o Shakil Ahmad r/o H.No.A4, Buland Masjid, Shastri Park, Delhi
6. Offence complained of or proved : 363 IPC
7. Plea of accused :Accused pleaded not guilty
8. Final order : Acquitted
9. Date of which order was reserved : 30.01.2015
10.Date of pronouncement : 06.02.2015 BRIEF REASONS FOR THE DECISION OF THE CASE
1. The case of the prosecution in brief is that on 27.08.2011 at about 2.45 pm, at House No. T32/1, Gali No.8, Gautampuri, Delhi, accused Arif kidnapped a minor girl namely Anchal from the lawful guardianship of her parents without their permission. On the FIR No. 330/11. 1 of 13 complaint of Mr. Praveen Kumar Jain ( father of the minor ), the present case FIR No. 330/11 was lodged at P.S Seelampur for the offence under Section 363 IPC. The investigation was carried out by the IO and after completion of the same, the chargesheet was filed before the Court.
2. After supplying the copies, charge was framed against the accused by Ld. Predecessor for the offence under Section 363 IPC to which he pleaded not guilty in respect of the allegations and claimed trial.
3. To prove its case prosecution has examined as many as four witnesses in all.
PW1 Shri Praveen Kumar Jain. the complainant in the present case. He has deposed that on 27.08.2011, his daughter Anchal Jain, who was aged about 16 years and four months old at that point of time, had gone for her tuition. However, she could not reach her tutor, she even did not return back to her home. He made his complaint to the police in this regard which is Ex.PW1/A. He has further deposed that he made an endeavour to trace out the girl, but he could not find her. Accused earlier used to give tuition to his daughter. On previous occasions, he cautioned the accused not to FIR No. 330/11. 2 of 13 follow his daughter. He has further deposed that he became suspicious about him. He even did not permit his daughter to go to her tuitions and for about 23 months she was in her home only. Thereafter, he arranged for a tuition at some different place. He still used to follow her. Accused asked his daughter to accompany him to Hazarat Nizamuddin and he took her there. He has further deposed that the girl Anchal could not be traced out despite best efforts. After some time father of accused gave him a telephone call that he has been able to trace out his daughter Anchal. Thereafter, he brought Anchal in the police station. He was called in the police station. The girl was thereafter taken to the hospital and from there she was shifted to Nari Niketan. The custody of his daughter was subsequently handed over to him. He has further deposed that when his daughter was there in the custody of accused, she was compelled to execute some documents, however, he is not aware about the nature of the documents. He further deposed that even thereafter, once accused had made a telephone call at their place but he rebuked him and cautioned him not to call again. This witness has been cross examined at length by Ld. Defence Counsel.
PW2 is Ms. Anchal Jain, the victim. She has deposed that FIR No. 330/11. 3 of 13 on 27.08.2011, she was going for her tuition at Braham Puri. In the way, accused Arif met her and she along with the accused went to Nizamuddin Railway Station. Accused Arif was known to her as earlier he used to give tuition to her. They had walked at the Nizamuddin Station for some time and thereafter she came back to her house. She further deposed that she went along with accused Arif on her own sweet will. She does not want to pursue this case any more. She wants to live with her family. She further deposed that accused Arif got signed two papers from her. She does not remember the contents of said paper. She stated that accused should not use those papers in his favour.
This witness was cross examined by the Ld. APP as she was resiling from her earlier statement and was trying to suppress the truth. In her cross examination by Ld. APP for the State, she deposed that accused Arif used to give tuitions at Adarsh Classes Braham Puri and from there accused used to follow her after tuition classes. Due to that her father had warned the accused not to follow her. Her father stopped sending her to the tuition classes and got arranged different tuition at different place for her. She denied the suggestion that on 27.8.2011, accused met her on a motorcycle and induced her to sit on FIR No. 330/11. 4 of 13 his motorcycle and took her with him. She admitted that accused first of all took her to New Delhi Railway Station and she had resided with him from 27.08.2011 to 05.09.2011. During that period they resided at New Delhi Railway Station and Nizamuddin Railway Station. She deposed that father of the accused Arif had seen them at Nizamuddin Railway Station and apprehended them. Thereafter, he made a call to her father. She denied the suggestion that she is deposing falsely that accused had not induced her to go with him, to save him and get rid of this case. She has been cross examined by Ld. Defence Counsel.
PW3 is ASI Karam Pal. He deposed that on 28.08.2011, he was present at the PS where DO / HC Kiran Pal Singh handed over to him original rukka and copy of FIR, which he handed over to the IO SI Manoj.
PW4 is SI Manoj Kumar, the IO of the case. He has deposed about the manner in which the investigation was carried out by him. He has proved the rukka Ex.PW4/A, handing over memo Ex.PW4/B, arrest memo as well as personal search memo of accused Arif Ex.PW4/C and Ex.PW4/D, disclosure statement Ex.PW4/E and seizure memo of birth certificate of the prosecutrix as Ex.PW4/F.
4. After completion of the prosecution evidence, the statement FIR No. 330/11. 5 of 13 of the accused under Section 313 Cr.P.C was recorded by this Court on 13.01.2015 wherein the accused pleaded his innocence. He has stated that he has not abducted Anchal Jain as alleged. She on her own will has gone to ISBT, Nizamuddin after12 days. His father has taken them from there to PS Seelampur.
5. I have heard the Ld. APP for the State and the Ld. Defence Counsel and have gone through the material on record.
Ld. APP has argued that the prosecution has proved its case beyond reasonable doubts whereas Ld. Defence Counsel has argued that the prosecution has miserably failed to prove the ingredients of the offence in question. He has argued that the age of the prosecutrix Anchal Jain on the date of the alleged offence in itself is doubtful because as per the testimony of PW1 Mr. Praveen Kumar Jain, her daughter was about 3.5 - 4 years when she was admitted in ClassI whereas a child under 5 simply cannot be admitted in ClassI. It has further been argued that as per the prosecution, father of the accused had informed the father of the victim about the victim and the accused having been spotted together, but he had not been made a witness. It has further been argued that there is nothing on record to suggest that accused has done anything to take away the victim from the custody FIR No. 330/11. 6 of 13 of her parents.
Before proceeding any further, it is to be seen that the accused has been charged with for the offence u/s 363 IPC. Section 363 IPC provides for the punishment for kidnapping any person from India or from lawful guardianship. This offence has been defined in Section 361 IPC. Section 361 IPC provides as under: "Kidnapping from lawful guardianshipWhoever 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 such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship"
After going through this definition, following three ingredients of the offence under Section 361 IPC emerges :
i) Taking or enticing away a minor under 16 years of age, if male or under 18 years if a female, or any person of unsound mind,
ii) Taking or enticing should be out of the keeping of the lawful guardianship of such minor or person of unsound mind,
iii) Such taking or enticing must be without consent of such guardian.
Now I shall discuss all the three essentials one by one to see as to whether the prosecution has successfully proved the same or not.
i) Taking or enticing away a minor under 16 years of age, if male FIR No. 330/11. 7 of 13 or under 18 years if a female, or any person of unsound mind The prosecution has stated the age of the victim as around sixteen years on the date of the alleged offence whereas Ld. Defence Counsel has disputed her age. Perusal of the record shows that an attested photocopy of birth certificate of the victim Ms. Anchal Jain showing her date of birth as 03.05.1995 is on record. This document has been admitted by the accused himself in his statement under Section 294 Cr.P.C on 22.05.2014. As the accused himself has not disputed the genuineness of birth certificate during the trial so no steps were taken by the prosecution to formally prove the same. Due to the admission of the accused himself, it is not open to him now to dispute the same at the stage of final arguments. Considering the date of birth as mentioned in the birth certificate, it is clear that the victim was below the age of 18 years on the date of offence in question.
Now, it is to be seen as to whether there was any taking or enticing by the accused in the given facts or not.
It is clear from the testimony of PW1 Praveen Kumar Jain that the alleged taking by the accused of the prosecutrix has not taken in his presence and this fact also gains strength from his statement Ex.PW1/A on the basis of which the present case FIR No. 330/11 has FIR No. 330/11. 8 of 13 been lodged. In his statement, he has stated that some unknown person has enticed away his daughter Anchal. So, the testimony of the victim Anchal Jain is to be examined to see as to what was the role played by the accused, if any, in the present matter.
What is meant by taking or enticing in terms of Section 361 IPC has been explained by Hon'ble Orissa High Court in the judgment titled as Biswanath Malik vs State of Orrisa, 1995 Cr.L.J 1416 (Ori.) as under :
" The word 'entice' involves an idea of inducement or allurement by causing hope or desire in the other. The inducement or allurement may take many forms, difficult to visualize and describe exhaustively; some of them may be quite subtle, depending for their success, on the mental state of the person at the time when the inducement is intended to operate. This may work immediately or it may create continuous and gradual, but imperceptible, impression culminating, after some time, in achievement of its ultimate purpose of successful inducement. The offence of kidnapping from lawful guardianship is complete when the minor is actually taken from lawful guardianship. The act of taking is not in the proper sense of the term a continuous act; when once the boy or girl has been actually taken out of the keeping, the act is a completed one. Enticement is an act of the accused by which the person kidnap is induced of his or her own accord to go to the kidnapper. It is not necessary that the taking or enticing should be shown to have been by means of force or fraud. Enticement need not to be confined to any single form of allurement. Anything which is like to allure the minor girl would be sufficient."
FIR No. 330/11. 9 of 13 The distinction between taking or enticing has been explained by Hon'ble High Court in the aforementioned judgment as under :
" There is an essential distinction between taking and enticing. The mental attitude of the minor is immaterial in the case of taking when an accused takes a minor with him, whether he or she is willing or not, the act of taking is complete and the condition is satisfied. But the word 'entice' involves an idea of inducement or allurement. One does not entice another unless the latter attempts to do a thing which she or he would not otherwise do"
The material lines in the testimony of victim Anchal Jain regarding the incident are mentioned below :
" In the way, accused Arif, present before the court today ( correctly identified) met me and I along with accused Arif went to Nizamuddin Railway Station".
" We had walked at Nizamuddin Railway Station for some time and thereafter I came back to my house. I went along with accused Arif on my own sweet will".
" It is wrong to suggest that on 27.08.2011, accused met me on motorcycle and induced me to sit on his motorcycle and took me with him".
" it is correct that accused first of all took me to the New FIR No. 330/11. 10 of 13 Delhi Railway Station and thereafter we went to Nizamuddin Railway Station. It is correct that I had resided with accused Arif from 27.08.2011 to 05.09.2011. During that period, we resided at New Delhi Railway Station and Nizamuddin Railway Station".
From perusal of the above, it is clear that there was no taking on the part of the accused as the victim herself seems to have accompanied him.
The inducement on the part of the accused has also been specifically denied by the victim in her testimony as mentioned above. It is true that the factum of the accused having followed the victim in past after tuition classes is on record. The complainant/PW1 Mr. Praveen Kumar Jain and the victim PW2 Anchal Jain had deposed about this fact in their testimonies. It has also come on record that the father of the victim (PW1) had warned the accused not to follow his daughter and he had also stopped sending her to tuition classes for some time. Later on, he got arranged her tuition at different place. But, it has not come on record as to for which purpose the accused used to follow the victim. Whether he had uttered any words while following her to show her intention/motive in doing so, is not clear. Whether the continuous following by the FIR No. 330/11. 11 of 13 accused Arif in past has induced in any way the victim herein to accompany him on 27.08.2011 when she was going for her tuition cannot be inferred from the testimonies of the material witnesses. If the accused has induced the victim by his previous conduct to accompany him then it was for the prosecution to clearly bring this important point to home and to prove the same but it seems that prosecution has failed miserably in doing so. The testimonies of PW1 and PW2 are in bits and pieces and a complete chain linking the previous conduct of the accused with the offence in question thereby showing that he has successfully allured the victim in following/accompanying him on the fateful day, could not be completed from the same.
It is settled principal of criminal law that an accused is presumed innocent until proved guilty by a Court of competent jurisdiction. The prosecution is supposed to prove its case beyond reasonable doubts.
As the prosecution has failed to prove the first ingredient of the offence under Section 361 IPC itself, so this Court is not going to discuss the remaining two ingredients.
6. Considering the above discussion, this Court is of the view FIR No. 330/11. 12 of 13 that the prosecution has failed to prove its case against the accused, so the accused namely Arif is hereby acquitted for the offence under Sections 363 IPC Indian Penal Code.
File be consigned to the Record Room after due compliance. Dictated & Announced in the open court on 06.02.2015 ( SUNIL GUPTA ) METROPOLITAN MAGISTRATE(NE) KKD COURTS, SHAHDARA, DELHI FIR No. 330/11. 13 of 13