Delhi District Court
State vs . Nizam Mohd., S/O Mohd. Kalim on 24 January, 2013
IN THE COURT OF SH. RAKESH KUMAR
ADDL. SESSIONS JUDGE-02 :(NORTH EAST):
KARKARDOOMA COURTS : DELHI
Session Case No. 06/2012
Received on assignment 30.01.2012
Arguments concluded on 03.01.2013
Date of Order 24.01.2013
FIR No. 312/2011
Police Station Karawal Nagar
Under Section U/s 363/328 IPC
In the matter of:-
State Vs. Nizam Mohd., S/o Mohd. Kalim
R/o Village Jhanjari
PS Golpura, Distt.
Modhepura, Bihar.
:JUDGMENT:
1. The above named accused was booked by SHO PS Karawal Nagar U/s 363/328 IPC with the allegations of having committed offences of kidnapping of a minor girl from the lawful guardianship of her parents and also administrated her to certain poisonous/stupefying things by making some cloth on her mouth with intend to facilitate the commission of offence of kidnapping.
2. FACTUAL MATRIX:-
It is the case of the prosecution that in the intervening night of 29/30.10.2011, complainant Ashok Kumar Saini alongwith his wife came to Police Station and got recorded his statement, wherein he alleged that he is auto driver by profession and having seven daughters and State Vs. Nizam Mohd. (SC No.06/2012) Page No. 1 of pages 26 one boy. Around 4/5 months back from the date of occurrence, accused Nizam Mohd. had resided at his house as tenant alongwith her wife. Around two months back, prior to the incident he had sent back her wife to his native place in Bihar and around one month thereafter, he had vacated their house and had gone away. Around 3/4 days prior to the occurrence, he had again started residing at his house as tenant. On 28.10.2011 accused took away his eldest daughter namely Meena aged about 22 years and his fourth daughter Sunita aged about 10 years with him by kidnapping/abducting them by way of enticement. When he called accused on his mobile number 7838761021, he told him that he will marry his elder daughter Meena and will keep the younger daughter Sunita with him. Thereafter, he kept on searching for his daughters at his level. On the basis of said complaint, IO SI Ashwani Kumar prepared a rukka and handed over the same to Duty Officer for registration of case and then IO alongwith the complainant went to the spot i.e. 22, Gali no.1, Phase-I, Shiv Vihar, Karawal Nagar, where he made inquiry in the locality. In the meantime Ct. Jagmohan came to the spot from PS and handed over rukka in original and computerized copy of FIR to the IO. Thereafter, investigation in the matter was carried out and search for both the girls and accused were made but they could not be traced out. On 02.11.2011, one person namely Mohd. Manjoor came to PS and produced the above said girl namely Sunita, who was got identified by the complainant, and after thorough investigation and State Vs. Nizam Mohd. (SC No.06/2012) Page No. 2 of pages 26 on finding no involvement of said Mohd. Manjoor, his statement U/s 161 Cr.P.C was recorded. Medical examination of said girl namely Sunita was got conducted at GTB Hospital. Her statement U/s 164 Cr.P.C was got recorded, wherein she stated that accused Mohd. Nizam forcibly kidnapped her and her sister Meena. On 23.11.2011, on the information and pointing out of complainant , accused Nizam Mohd. was arrested from Village Nangala Charandas, near Shiv Mandir, Phase-II, Noida, U.P and the kidnapped girl namely Meena was got recovered, who refused to accompany her parents.
Statement of said Meena was recorded U/s 161 Cr.P.C and she was taken to GTB Hospital for conducting her medical examination but she refused to do so. Accused Nizam Mohd. was interrogated and he stated that he and Meena wanted to marry each other and by escaping themselves from the relatives of Meena, they fled away from the house of Meena and when the younger sister of Meena namely Sunita saw them fleeing, she started crying and that is why they accompanied her also with them. Later on she (Sunita) was sent back to her parents through his friend. Disclosure statement of accused Nizam Mohd. was recorded but he refused to sign the same. Statement of Meena was got recorded U/s 164 Cr.P.C from the court concerned of Ld. MM, wherein she stated that she with her own consent married with accused Nizam Mohd. and they took her younger sister Sunita with them on seeing her crying. Then, by the order of Court, girl Meena was left at the State Vs. Nizam Mohd. (SC No.06/2012) Page No. 3 of pages 26 house of her in laws. Thereafter, on the basis of statements of Meena and Sunita recorded Sec.164 Cr.P.C, Sec.366 IPC was deleted and Section 328 was added in the charge sheet. Statements of witnesses were recorded. Thereafter, on completion of the investigation the charge sheet U/s 363/328 IPC was filed before the court of Ld. Metropolitan Magistrate concerned. As the offence was exclusively triable by the court of sessions, so the case was committed to sessions and than by way of assignment the case was received in this court.
3. After hearing respective submissions of the both the sides and on finding sufficient prima facie material for farming of charge, a charge u/Sec.363/328 IPC was framed against the accused Nizam Mohd. to which he pleaded not guilty and claimed trial.
4. In support of its case, prosecution has examined as many as 15 witnesses. Out of them PW-1, PW-2, PW-3, PW-4, PW-5, PW-12 & PW-13 are formal witnesses, PW-8 & PW-10 are medical/expert witnesses and PW-6, PW-7, PW-9, PW-11, PW-14 & PW-15 are the material witnesses.
5. FORMAL WITNESSES:-
PW-1 HC Bijender Singh (the Duty Officer at PS Karawal Nagar at the relevant time) testified that on 30.10.2011 at about 1.00 a.m on receipt of rukka from SI Ashwani, he recorded the present FIR, copy of which is Ex.PW1/A, and handed over the original tehrir and copy of said FIR to Ct. Jagmohan for handing over the same to SI Ashwani for further investigation. He also made his State Vs. Nizam Mohd. (SC No.06/2012) Page No. 4 of pages 26 endorsement on rukka, which is Ex.PW1/B. PW-2 W/Ct. Sonal stated that on 24.11.2011, she alongwith prosecutrix Meena and SI Ashwani had come to the Karkardooma Courts and produced the prosecutrix before the court of Ld. MM concerned for recording the statement of prosecutrix U/s 164 Cr.P.C and her statement was recorded inside the chamber of Ld. MM. She also stated that as per the directions of Ld. MM, prosecutrix Meena was taken to Village Parthala, Sector 119, Noida, UP, where parents in law of Meena did not meet them but one Mohd. Aslam (Nandoi of Meena) met them and the custody of the girl was handed over to him.
PW-3 Ct. Jagmohan testified that on 30.10.2011, Duty Officer handed him one original complaint and copy of FIR of the present case for handing over the same to IO SI Ashwani and accordingly, he went to house no.22, Gali No. 1, Phase-1, Shiv Vihar, Karawal Nagar and handed over the same to the IO. He also stated that IO made search for accused Nizam Mohd. and kidnapped girls Sunita and Meena but of no avail and thereafter, they returned to the PS, where wife of complainant namely Shiela was present.
PW-4 HC Virender Singh testified that on 23.11.2011, he was on patrolling in the area of PS Karawal Nagar. On receipt of call of IO SI Ashwani Kumar that he had to join the investigation of this case with him, he joined the investigation. IO had information that accused was present with the prosecutrix at Village Nangla Charan Dass in Noida. He, alongwith Sh.Ashok Saini, the father of State Vs. Nizam Mohd. (SC No.06/2012) Page No. 5 of pages 26 prosecutrix, Lady Ct. Sangeeta and SI Chetan joined the investigation with IO and they left for above place, where father of the complainant Ashok Saini pointed out accused (correctly identified) and the prosecutrix Meena at a house. IO interrogated the accused and made inquiry from the girl and then they returned to the PS alongwith prosecutrix and accused.
During cross examination he stated that IO had tried to get the public person associated in the proceeding at Nangla Charan Dass, Noida. The writing work was done by the IO at the place of arrest/apprehension. He prepared arrest memo, personal search memo, disclosure and interrogation papers, however, he admitted that the arrest memo and personal search memo do not bear his signature.
PW-5 Lady Ct. Nirmal Kaur stated in her testimony that in the late night of 02.11.2011, she had taken one minor girl namely Sunita aged about 10 years to GTB Hospital for her medical examination at the instance of IO. She was medically examined at about 3.00 p.m and thereafter she returned to PS and handed over the custody of the girl to the IO, where father of Sunita was also present and subsequently, the custody of the girl was handed over to her father with the directions to produce the girl at Karkardooma Courts at 2.00 p.m. During cross examination she stated that girl Sunita had come to PS prior to 12.00 mid night alongwith her father Ashok. Mother of girl Sunita was not there in the PS. State Vs. Nizam Mohd. (SC No.06/2012) Page No. 6 of pages 26 Ashok had told that Sunita was dropped at her residence and subsequently she was brought to the PS. She stated that she had told to the doctor about the purpose of medical examination. He conceded that she had not told to the doctor regarding physical assault/sexual assault/drug abusive assault/use of any intoxicant upon Sunita. Sunita had also not disclosed anything regarding this.
PW-12 Sh. Ankur Jain, the then Ld. MM (NE), KKD Courts, proved the statement of Sunita Ex.PW12/C and the same was recorded vide application Ex.PW-12/A. One copy of the statement was given to the IO vide application Ex.PW12/B. PW-13 Mohd. Aslam testified that on 24.11.2011 police officials had come to his house alongwith prosecutrix Meena and they had inquired about the parents of NIzam Mohd and he told them that they are not keeping well and had gone to the doctor. As per wishes of Meena, her custody was given to him in fit condition being the brother in law of Meena.
During cross examination he stated that Manjoor, through whom Sunita was sent back at PS, was his labour/ servant, who had left the services and went back to his native place.
MEDICAL/EXPERT WITNESSES:-
PW-8 Dr. Shikha Sharma testified that on 24.11.11 at about 1.00 a.m Meena, female 23 years was brought by W/Ct. Sangita for medical examination with alleged history of elopement and fleeing away from the State Vs. Nizam Mohd. (SC No.06/2012) Page No. 7 of pages 26 home with a man Nizam and subsequently got married him. She was referred to for gynecological test by Dr. Anupam Priyadarshi, her colleague through MLC Ex.PW8/A. Meena had not consented for her internal examination and she gave the same in writing. Accordingly her internal/ gynecological test was not conducted. She had mentioned the same on the back of the casualty paper Ex.PW8/B bearing her signatures at point A. Meena had written her statement at encircled portion B along with her signatures at point C. Thereafter, the custody of Meena was given back to W/Ct. Sangita.
PW-10 Dr. Monisha testified that on 02.11.2011 one patient namely Sunita female 10 years was brought by the police for medical examination with the alleged history of missing from home since 28.10.2011 and further running out with her sister and one person namely Nizam and stayed with them for about 5 days and Nizam got her left at PS through some other person. She had examined Sunita and on local examination her hymen was found intact, no area of redness was found nor any mark of physical and sexual assault was found on her person. She also stated that prior to her internal examination, the consent was taken from the guardian. Sunita was sent to her through MLC No.6318/11 Ex.PW10/A prepared by Dr. Vikas Kalara. Her observation made on the treatment slip Ex.PW10/B is in her handwriting and signature, which bears her signature at point A. During cross examination she conceded that the State Vs. Nizam Mohd. (SC No.06/2012) Page No. 8 of pages 26 patient had not given her any history of drug abuse or sexual/physical assault.
MATERIAL WITNESSES:-
PW-6 Sunita (younger sister of prosecutrix), a minor girl testified that on 28.10.2011, she had gone to shop along with her sister Meena. There was one TSR station near the shop where three persons were sitting inside the TSR and out of those three persons, one was know to her as Nizam (correctly identified), who had been a tenant at their house. She also stated that he got herself and her sister Meena forcibly to sit in TSR. First of all he had made her sister Meena forcibly to sit and thereafter her. When she raised alarm, accused made her to smell something from the clothes (kapda sungha diya) and thereafter, she is not aware as to what had happened. She confirmed of having recorded the statement before a Magistrate inside the chamber. She was taken to a very far place and after about seven days, one uncle had dropped her to the police station. She was taken to the hospital for medical examination.
During cross examination she claimed that she was neither tutored by the police official nor by her father before making statement u/s 164 Cr.P.C recorded by Ld. MM. She conceded that the shop from where she was kidnapped, they had been visiting frequently and the said shop is visible from her house. She conceded that there are many houses situated on the way to that shop from her house. The shop area is a crowded area and usually many State Vs. Nizam Mohd. (SC No.06/2012) Page No. 9 of pages 26 people remained present there. She knew accused as he was residing as their tenant and had left their house 2/3 months prior to the incident. Her father had never entered into any quarrel with accused on any issue at any point of time. Besides the three occupants in the TSR there was one driver of the TSR too. They all had got seated on the seat of the TSR. One white cloth (handkerchief) was put to smell her. Nizam had put the handkerchief over her mouth, who had put some water type liquid on the same and its smell was a foul smell. The person, who had come to drop her was a maulvi type of person, who had met her at the place from where she was taken by the accused. First of all, she had met with SI Ashwani Kumar in the police station, who had conversation with that Maulvi for about 1-2 hours. Her father had come to PS at about 8.00/8.30 PM, whereas she had reached at PS at about 1.30 p.m. Prior to making inquiry from her, police had done some writing work. Her mother was called from her house immediately after her arrival at the PS. She stated that her mother had not tutored her anything. Accused has not married her sister. She denied that she had gone with accused as per the saying of her sister.
PW-7 Meena (the prosecutrix) has stated that on 28.10.11 at about 1.00 p.m, she alongwith her younger sister namely Sunita had gone to nearby shop, where accused Nizam came and she had accompanied with him.
Her younger sister namely Sunita was also with her and when she started crying while taking away of her by the State Vs. Nizam Mohd. (SC No.06/2012) Page No. 10 of pages 26 accused, she had also taken her with them. They went to Village Nangla, Charan Dass, Noida, where they stayed for a week. Thereafter, she got sent Sunita to PS Karawal Nagar through one Maulvi (the brother in law of accused). On 02.11.11 police alongwith her father came there and took her and the accused to Police Station Karawal Nagar. Than she was got medically examined. Her statement U/s 164 Cr.P.C was got recorded, in which she stated in favour of accused. She, however, conceded that she had not taken any consent from her parents before going away with accused either regarding herself or regarding Sunita. She confirmed that Sunita is around 10 years of age and she is the student of MCD School. She identified her I-card Ex.PW7/A. She claimed that she had married with Nizam and that is why she had given statement U/s 164 Cr.P.C in favour of accused. She, however, conceded that the accused had not met her parents prior to taking her and her sister with him nor she made call to her parents during her stay with Nizam at Noida.
During cross examination she claimed that she as well as Sunita had gone with accused with their own consent. Accused had not made anything to Sunita to smell at the time of taking her away.
PW-9 Ashok Kumar Saini testified that around 4/5 months prior to the date of occurrence accused Nizam Mohd. (correctly identified) had resided at his house as tenant along with his wife and around 2 months prior to the incident he had sent his wife to his native place in Bihar State Vs. Nizam Mohd. (SC No.06/2012) Page No. 11 of pages 26 and around one month back he had vacated their house and had gone away. Around 3/4 days prior to the occurrence he had again started to reside at his house as tenant. On 28.10.11 accused took away his eldest daughter namely Meena aged about 22 years and her fourth daughter Sunita aged about 10 years with him by kidnapping/abducting them by way of enticement. When he called accused on his number 7838761021, he told him that he will marry his elder daughter Meena and will keep the younger daughter Sunita with him. He also testified that he kept on searching for his daughters and on 30.10.11 an FIR was registered and his statement Ex.PW9/A was recorded, which bears his LTI at point A. Further on 01/02.11.11, IO called him over telephone and informed that someone has brought his younger daughter Sunita aged about 10 years to the PS. That person was not known to him. IO inquired from Sunita and recorded her statement and she was taken to GTB Hospital, where she was medically examined and her custody was handed over to him. On 02.11.11 he had come to the court with his daughter and her statement was recorded by Ld. Metropolitan Magistrate.
During cross examination he stated that for the first time accused Nizam came to reside in his house prior to Diwali festival of 2011 and remained there for around 4/5 months. He was the only tenant at that time. He had come to know about occurrence after 12/12.30 p.m (noon time) through his wife Smt. Sheela Devi. At that time, he was in State Vs. Nizam Mohd. (SC No.06/2012) Page No. 12 of pages 26 Bhajanpura. He confirmed that he is not aware as to who had written Ex.PW9/A and also the contents thereof. He stated that he might have put his LTI on the same after the recovery of his younger daughter. He could not tell the date and month of the recovery of her daughter. At about 3/4 p.m, he had come to know about the return of his daughter Sunita. When he had gone to PS, he saw his wife Smt. Sheela Devi with her in the police station. He remained in the PS till 9.00 p.m. He had accompanied IO many times in search of accused, but he could not be traced out and he kept on changing his addresses. Initially he had gone to Noida and subsequently somewhere in the outskirts but he could not tell the name of that place. He came to know about the changing of addresses by the accused through Ajay and Vinod, who were residing somewhere in Sec.15, Noida. He did not tell to the police about Ajay and Vinod. Police officials had brought brother-in-law and father of accused and thereafter, only his younger daughter could be recovered. They were brought at PS at about 12/1.00 mid night in his presence. The accused was arrested in his presence at about 2.30/3.00 p.m from Noida and at that time local police was also present. Some papers were prepared in his presence but he had not put his LTI on those papers. He stated that Ex.PW9/A bears his LTI at point A but he is not aware as to when and where he had put the same.
PW-11 Smt. Sheila (wife of PW-9) testified that she has eight children out of which seven are daughters State Vs. Nizam Mohd. (SC No.06/2012) Page No. 13 of pages 26 and one son. Accused (correctly identified) had come to her house and had resided as tenant along with his wife and one daughter last year. After remaining at her house for about two months, he had left her house. After some time (she could not tell the month but stated that it was 28th day of last year) accused again came to her house. Around that day Bhaiya Duj was celebrated. On the same day her two daughters namely Meena aged about 20-21 years and another daughter Sunita aged about 10 years had gone to market to purchase something. Accused Nizam had taken away her both daughters. They searched for their daughters but of no avail. She called Nizam on his mobile phone and he told her that her daughters are not with him. Thereafter missing report was filed.
During cross examination by Ld. Addl. PP, she conceded that accused Nizam had told her that he will marry her elder daughter Meena and will keep her younger daughter Sunita with him. Further after remaining at her house as tenant for two months, accused had sent back his wife to his native place and after about one month of sending his wife he himself left her house. She confirmed that the occurrence was of the month of October. Accused had come to her house around 3-4 days prior to the date of incident and started to live there as tenant.
During cross examination she confirmed that the age of her eldest daughter was 20 years and accused Nizam was known to her for two months prior to the date of incident as wife of Nizam approached her for a rented State Vs. Nizam Mohd. (SC No.06/2012) Page No. 14 of pages 26 accommodation and she accommodated both of them as a tenant for the period of two months and when the wife of accused left the premises for her native place the accused had also vacated the rented accommodation. She was unaware about any relationship between Meena and accused prior to the incident. During the period of his tenancy the accused never quarreled with them and he lived in harmony. On the day of incident, the wife of accused made a call to her and informed that accused Nizam had taken away her both the daughters with him. On 01.11.2011, she received the information about the recovery of Sunita and on 02.11.2011, she was handed over to her. Her younger daughter told her that her elder sister was kept by Nizam. She also disclosed that accused Nizam threaten them that if they disclosed to anyone he would kill their father. She also stated that Meena was crying/weeping but accused was not allowing to leave her.
PW-14 SI Ashwani Kumar (IO of the case) confirmed that he recorded the statement of complainant Ashok Kumar Saini Ex.PW9/A bearing his signature at point B and thumb impression of complainant Ashok Kumar at point A and on the basis of which, he prepared rukka Ex.PW14/A and handed over the same to the DO for registration of the case and accordingly, FIR Ex.PW1/A was registered at PS. Then he along with the complainant went to the spot i.e House No.22, Gali no.1, phase-I, Shiv vihar, Karawal Nagar,where he made inquiry in the locality. Meanwhile, Ct. Jagmohan came to the spot with State Vs. Nizam Mohd. (SC No.06/2012) Page No. 15 of pages 26 computerized copy of FIR. Thereafter, he along with complainant and Ct. Jagmohan came back to the PS, where the statement of Shiela in the PS was recorded. Further on 31.10.11 at the instance of complainant, he along with HC Om Prakash, W/Ct. Sumitra and complainant went to Sector 71, Noida in a private vehicle in search of accused Nizam. First of all, they went to the police post of said area and met SI Kunwar Pal and thereafter, they along with SI Kunwar Pal and his staff went to near Amarpaali buildings jhuggies, where one Mohd, Kaalim, father of accused Nizam and Aslam, brother in law of accused (jija) met them. He made inquiry from them. On 01.11.11 at about 10.30/11.00 p.m one person namely Mohd. Manjoor came to PS and he produced one girl namely Sunita aged about 10 years, the daughter of complainant of the present case. He stated that his friend Nizam Mohd. had asked him to leave the said girl in the PS and accordingly he brought the said girl in the PS. His statement was recorded u/s 161 Cr.P.C. Thereafter, the complainant was informed about the recovery of his daughter. Complainant came to the PS and Mohd. Manjoor was shown to him at the PS, but the complainant told that the said person was not known to him. Thereafter, he recorded the statement of the girl u/s 161 Cr. P.C and she was taken to GTB hospital through L/Ct. Nirmal kaur. The complainant also accompanied with them to the hospital for her medical examination. In the hospital the medical examination of Sunita was got conducted vide MLC Ex.PW10/A and Ex.PW10/B and after getting the medical State Vs. Nizam Mohd. (SC No.06/2012) Page No. 16 of pages 26 examination of the girl, she was handed over to the complainant and he was directed to produce the girl in the court at 2.00 p.m for statement u/s 164 Cr. P.C and accordingly her statement was got recorded. Further on 21.11.11 complainant informed him that he came to know that accused Nizam along with his daughter Meena might be present at Sector-2 Noida, village Nanglacharan Dass and accordingly, he along with complainant, SI Chetan, HC Virender, W/Ct. Paramjeet went there, where they came to know that accused had already left the room in which he was residing with the girl 20-25 days ago and the persons who disclosed the above said fact also pointed out one room. Further on 23.11.11 on the information of complainant, they again went to the aforesaid address, under the intimation to police post sector 2, Noida and from the said police post, the local officials accompanied them to a room at Village Nanglacharan Dass near Shiv Mandir, where the door of the room was found opened and accused and the girl Meena were found there sitting in the room and on the pointing out of complainant, accused Nizam was apprehended and interrogated verbally. Thereafter, he was arrested vide arrest memo Ex.PW14/B. His personal search was conducted vide memo Ex.PW14/C. The intimation regarding the arrest of accused Nizam was given to his father through phone. Statement of Meena was recorded. The statement of complainant Ashok Saini was also recorded by him. Thereafter, they brought accused and girl Meena to the PS Karawal Nagar where the Smt. Shiela wife State Vs. Nizam Mohd. (SC No.06/2012) Page No. 17 of pages 26 of complainant was already present. Thereafter, Meena was taken to GTB hospital through L/Ct. Sangeet. Mother of Meena also accompanied them to the hospital. The medical examination of Meena was conducted vide MLC Ex.PW 8/A but she refused to get her internal examination. Girl Meena refused to accompany their parents. Thereafter, she was brought to PS in the custody of L/Ct. Sangeeta. The statement of Smt. Shiela was recorded by him. In the PS the accused was interrogated and during that course he made disclosure statement Ex.PW14/D but he refused to put his signatures on the disclosure statement. Thereafter, accused Nizam was produced before the court concerned and from there he was remanded to Judicial Custody. Statement of Meena u/s 164 Cr.P.C was also got recorded on the same day and on the direction of the court, Meena was handed over to the brother in law of accused Nizam namely Mohd. Aslam at Sec.71 Noida vide handing over memo Ex.PW14/E. He further stated that at the time of handing over the girl Sunita to her father, he prepared memo Ex.PW14/F. Mother of Sunita had also handed over one I-card of Sunita and it was taken into possession by him vide memo Ex.PW14/G bearing his signature at point A and the card is Ex.P1.
During cross examination he confirmed that he reached at the spot at about 2.00 a.m, where 1-2 neighbours already found present there and he made inquiry from them. The FIR was registered on 30.10.11 in the night itself. He was present in the PS. Mohd. Manjoor State Vs. Nizam Mohd. (SC No.06/2012) Page No. 18 of pages 26 came to PS along with small girl namely Sunita and after making inquiry from Mohd. Manjoor, he made a telephonic call to the parents of the girls. The girl was quiet normal at the time when she was brought by Mohd. Manjoor. The girl told him that her elder sister Meena was in love with accused and she also wanted to accompany them. He had recorded the statement of girl Sunita only in the presence of her father. He had informed the representative of the Child Welfare Committee after about 20-25 minutes of the arrival of the girl at PS. After medical examination, the custody of the girl was handed over to the father of the girl in the hospital itself. He had gone to the house of complainant for the purpose of recovery of cloth as it was mentioned in the statement u/s 164 Cr. P.C of the girl that she was taken by putting the cloth to her containing some intoxicant and the girl told him that she was not knowing anything nor she could get the same recovered. On the information of the complainant they visited the place of accused i.e Sector 2 village Nangla charan Dass near Shiv Mandir. Accused did not disclose the name of any other person in his disclosure statement nor Meena disclosed the name of any other person in her statement.
PW-15 Mohd. Manjoor confirmed that on 01.11.11 accused Nizam came to his jhuggi along with the two girls, one was small and other was older one (young girl) and told him to take the child girl (small girl) to PS Karawal Nagar. Accordingly he brought the said child to PS Karawal Nagar and she was left by him there. Police inquired him about State Vs. Nizam Mohd. (SC No.06/2012) Page No. 19 of pages 26 the said girl and he told the actual facts to the police.
During cross examination he claimed that Nizam was known to him for about one year. When the accused came to his house along with girls. The girls were not scared and looking happy. He along with small girl came to Yamuna Vihar in a tempo and from there they went to PS Karawal nagar in a rickshaw. The girl was not willing to go to her parents, rather, she was willing to reside with her sister and accused Nizam.
6. After conclusion of prosecution evidence, statement of accused u/s 313 Cr. P. C was recorded in which he vehemently denied the story of the prosecution and the evidence brought up by the prosecution and claimed that he has been falsely implicated in this case as the girl Meena came with him with her consent and as the little sister of Meena was weeping, she was taken by her alongwith her. He played no role in the taking away of Sunita out of the custody of her parents and she was taken by Meena only. He, however, opted not to lead any evidence in defence.
7. I have carefully heard the rival submissions of both the sides. I have also perused the entire material placed on record.
8. In the instant case the accused Nizam Mohd. has been charged with the offences U/s 363/328 IPC.
To constitute an offence u/s 363 IPC:-
(i).The person kidnapped must be a minor or a person of unsound mind;
State Vs. Nizam Mohd. (SC No.06/2012) Page No. 20 of pages 26
(ii).there must be taking or enticing of a minor or a person of unsound mind;
(iii).the taking or enticing must be from the keeping of a lawful guardians of a minor or person of unsound mind; and
(iv).the taking or enticing must be without the consent of such guardian.
The minor means under 16 years in the case of a male or under 18 years in the case of female. In the case of minor girls the section is attracted irrespective of the question whether she is married or unmarried. The offence of kidnapping consists solely of taking a minor from the keeping of her lawful guardian and no intention need be established.
The word "take" means to cause to go, to escort, or to get into possession. The taking need not be by force, actual or constructive.
The expression "enticing" in the section, involves that while the person kidnapped might have left the keeping of the lawful guardian willingly still the state of mind that brought about the willingness must have been induced or brought about in some way by the accused. It involves an idea of inducement by exciting hope or desire in the other.
A minor is not competent to give her consent to her taking because it is the consent of the guardian which is material. However, a minor is certainly competent to leave the protection of her guardian of her own accord.
State Vs. Nizam Mohd. (SC No.06/2012) Page No. 21 of pages 26
9. In order to prove offence under Sec.328 IPC, the prosecution is required to prove that the substance in question was a poison, or any stupefying, intoxicating or unwholesome drug, etc. that the accused administered the substance to the complainant or caused the complainant to take such substance, that he did so with intent to cause hurt or knowing it to be likely that he would thereby cause hurt, or with the intention to commit or facilitate the commission of an offence. It is, therefore, essential for the prosecution to prove that the accused was directly responsible for administrating poison etc. or causing it to be taken by any person, through another.
10. As per prosecution, the accused had kidnapped/ abducted both the daughters of the complainant namely Meena and Sunita by way of taking them away out of the custody of their parents i.e. lawful guardians. However, since on her apprehension, the elder daughter, who was in love with accused and willing to marry him, had not supported the prosecution either in her statement recorded before the police or in the statement recorded U/s 164 Cr.P.C, so the charge sheet was preferred by the police for the offence U/s 363 & 328 IPC qua the younger daughter of the complainant namely Sunita only.
11. To bring home the guilt of the accused Nizam Mohd., the prosecution was required to establish the following:-
(i).the accused had taken away the minor girl namely Sunita from the lawful guardianship State Vs. Nizam Mohd. (SC No.06/2012) Page No. 22 of pages 26 of her parents;
(ii).he had taken away her without the consent and knowledge of her parents;
(iii).he had administered her to certain
poisonous/stupefying things by making
some cloth on her mouth with intend to
facilitate the commission of offence of
kidnapping.
12. According to Ld. Addl. PP for the State the case of the prosecution is crystal clear. By the statements of PW-6 minor girl and of her father and mother, coupled with the testimonies of official witnesses, it has been established that accused had kidnapped the minor girl out of the lawful guardianship of her parents without their consent or knowledge and he facilitated the kidnapping by using certain stupefying things by making some cloth on her mouth with intend to facilitate the commission of offence of kidnapping.
Per contra as per Ld. Counsel for accused, the accused is innocent and he has no role in taking away of the girl Sunita from the lawful custody of her guardian. Since she was taken by her own elder sister i.e. PW Meena (who was in love with the accused) with her and as at the time of leaving the house by minor Sunita with Meena, her guardianship was transferred temporarily to Meena, so it can not be said that she was ever taken away out of the lawful guardianship and as such no offence is made out against the accused. In the absence of the parents, the State Vs. Nizam Mohd. (SC No.06/2012) Page No. 23 of pages 26 guardianship of the Sunita was temporarily vested in Meena. Since the girl Sunita always remained under the care and custody of Meena, so offence U/s 363 IPC has not been made out against the accused. Similarly, there is no sufficient material on record to hold the accused guilty U/s 328 IPC.
13. After giving my thoughtful consideration to the rival submissions of both the sides, I find that as regards to the claim of Ld. Defence counsel that the material brought on record is not sufficient to hold the accused Nizam Mohd. guilty U/s 328 IPC. Although, in her testimony PW-6 the minor girl Sunita has testified that the accused got her and her sister Meena forcibly to sit in a TSR and when she raised alarm accused made her to smell some thing from the clothes (kapda sungha diya) and what happened thereafter, she was not aware. But PW-7, the elder sister of PW-6 has no where in her testimony has spoken even a word in the corroboration of said claim of PW-6. She has rather stated that her younger sister was also accompanied with her and when started crying, she had taken her with them. Further during cross examination, she has specifically stated that the accused had not made anything to Sunita to smell at the time of taking her away or she was made unconscious at that time. Further PW-10 Dr. Munisha has also confirmed that at the time of the examination of patient Sunita, she had not given her any history of drug abuse of sexual/physical assault. Further no efforts were made by the investigation agency for getting the said cloth/ State Vs. Nizam Mohd. (SC No.06/2012) Page No. 24 of pages 26 handkerchief recovered to which, the minor girl Sunita was forcibly made to smell. Thus, on the basis of bald and un- corroborative testimony of PW Sunita, the accused can not be held guilty for commission of offence U/s 328 IPC. Accused is accordingly acquitted thereinunder.
14. However, so far as Sec.363 IPC is concerned, I am afraid that the claim of Ld. Defence Counsel is not convincing as the prosecution has successfully achieved its mission of proving its case U/s 363 IPC. It is not in dispute at all that the girl Sunita was a minor at the time of occurrence and in her testimony PW-7 has clearly stated that Sunita was around 10 years of age and she was the student of MCD School and she also identified her I-Card Ex.PW7/A. Further PW-6 Sunita has clearly and specifically stated in her testimony that the accused got herself and her sister Meena forcibly to sit in TSR and she specifically denied the suggestion put to her that she had gone with accused as per the saying of her sister. She was taken to a very far place and after about seven days, one uncle had dropped her to the Police Station. Further no where it has come on record that at the time of taking her away out of the custody of her parents, the consent of the parents of Sunita was taken or they were informed even. PW-7 Meena has conceded that she had not taken any consent from her parents before going away with accused either regarding herself or regarding Sunita. Further the accused had not met her parents prior to taking her and her sister with him nor any call was made to them during her stay with Nizam State Vs. Nizam Mohd. (SC No.06/2012) Page No. 25 of pages 26 at Noida. Further PW-9, the father of the minor girl, has also confirmed that when he called accused on his number 9738761021, he told him that he will marry his elder daughter Meena and keep his younger daughter with him.
The plea taken on behalf of the accused that the girl Sunita herself had gone with them or she was allowed to be accompanied by Meena, the elder sister of Sunita, and the accused had played no role in taking her away out of the custody of parents, is not convincing as accused was duty bound not to allow the minor girl to accompany with him or with Meena. Further the plea of the accused that since minor girl Sunita was taken by her own elder sister Meena (who was in love with the accused) with her and as at the time of leaving the house by minor Sunita with Meena, her guardianship was transferred temporarily to Meena, can not be accepted at all as the guardianship of the minor always remains with the parents and it never shifts to anybody temporarily or otherwise.
15. In the light of aforesaid, the case of the prosecution is established U/s 363 IPC against the accused beyond the shadow of reasonable doubt and therefore, I hereby hold the accused guilty U/s 363 IPC.
16. Now he be heard on the point of quantum of sentence.
(Announced in the open (RAKESH KUMAR)
court today on 24.01.2013) ADDL. SESSION JUDGE (NE)
ARKARDOOMA COURT/DELHI
State Vs. Nizam Mohd. (SC No.06/2012) Page No. 26 of pages 26