Delhi District Court
State vs . Roshan Shahee on 2 March, 2020
IN THE COURT OF SH. PUNEET NAGPAL METROPOLITAN
MAGISTRATE-7, WEST DISTRICT, TIS HAZARI COURTS, DELHI
STATE
VERSUS
ROSHAN SHAHEE
Computer ID No. 65193/2016
FIR No. 636/13
P.S. Tilak Nagar
U/S 363 IPC
Sh. Vinod Saluja,
S/o Sh. Mela Ram
R/o B-240, Vishnu Garden,
Tilak Nagar,
New Delhi.
... Complainant
VERSUS
Sh. Roshan Shahee
S/o Sh. Anil Shahee
R/o, F-29/16, Gali No. 4,
Nangli Vihar,
Najafgarh,
New Delhi. ...Accused
Date of Institution : 05.08.2014
Date on which judgment was reserved : 26.02.2020
Date of judgment : 02.03.2020
Final Order : Acquitted
FIR no. 636/2013 Page 1 of 11
P.S. Tilak Nagar
State Vs. Roshan Shahee
JUDGMENT
The important facts of the present case are as follows :
1. In the instant case, the accused namely Roshan Shahee has been set up by the prosecution to face trial on the allegations that on 22.11.2013, at about 4:00 PM, from House No. 240, Vishnu Garden, Tilak Nagar, Delhi, the accused had kidnapped one Ms. Jyoti Saluja, minor daughter aged about 17 years, of the complainant namely Sh. Vinod Saluja, without the consent of the Lawful Guardian/complainant and therefore, the accused was alleged to have committed an offence punishable under section 363 IPC.
2. The FIR was lodged at the instance of complainant Sh. Vinod Saluja in respect of offences punishable u/s 363 IPC. On conclusion of investigation, challan u/s 173 Cr.P.C was filed against the accused in respect of offences punishable under section u/s 363 IPC.
3. Cognizance was taken against the accused in respect of offences punishable u/s 363 IPC and accused was summoned. In the light of the above stated facts and proceedings and after making compliance of provisions of section 207 Cr.P.C vide order dated 26.04.2017, charge u/s 363 IPC was framed against the accused by the then Ld. MM, West, Tis Hazari to which the accused pleaded not guilty and claimed trial.
4. Thereafter, the matter was fixed for prosecution evidence and the prosecution examined 7 prosecution witness to bring home the guilt of the accused.
FIR no. 636/2013 Page 2 of 11P.S. Tilak Nagar State Vs. Roshan Shahee
5. The victim/ minor daughter of the complainant Ms. Jyoti Saluja/ PW1 deposed that in the year 2013, she had went away from her house due to some family disturbance. She deposed that after leaving the house of her father, she had went to meet the accused Roshan at his house and from there, both of them had gone to Shish Ganj Gurudwara, Delhi. She further deposed that on the next day, they both had gone to Tis Hazari Court for marriage and at the court, the father of the victim/PW1 took her to PS Tilak Nagar. She deposed that during the course of investigation, her statement under section 164 Cr.P.C. Ex. PW1/1 was also got recorded by the IO from the Ld. MM. At the request of Ld. APP for the state, permission to cross examine PW1 was granted to the prosecution and PW1 was thereafter cross examined by Ld. APP for the state. In her cross examination, PW1 deposed that though her date of birth which has been recorded in Birth Certificate is 15.09.1996, however, the date of birth recorded in the school certificate is 15.02.1996. She admitted the fact that the accused was known to her for past one year prior to the date of the alleged incident. She admitted the fact that the father of the accused was running a grocery shop in front of her house and that she was in love with the accused at the time of the incident. She deposed that on the day of the incident, she had left her house as her parents wanted to send her to the house of her maternal uncle at Jhansi, M.P. She admitted the fact that on the day of her incident, she was under 18 years of age when she had left her house. PW1 was also cross examined at the instance of the accused. In her cross examination, done at the instance of the accused, she denied the fact that she had told the accused regarding the fact that she was a major when they had first met. She admitted the fact that the accused had never asked her to leave her house. She also admitted the fact that she had told the accused that she was having documents which show her age to be above 18 years.
FIR no. 636/2013 Page 3 of 11P.S. Tilak Nagar State Vs. Roshan Shahee
6. PW2/ Complainant/ father of the minor girl in his testimony deposed that he cannot recall the complete facts of the case. He deposed that he had lodged a missing complaint regarding her daughter. The same is Ex. PW2/A. PW2 was declared hostile was Ld. APP for the state and was cross examined at the instance of the state. In his cross examination, PW2 deposed that at the time of the incident, his daughter was around 17 years of age. He also admitted the fact that he had informed the police that he had suspicion that one Rohan, who was working in a shop in front of his house had kidnapped his daughter. He also admitted the fact that he had found his daughter along with Roshan after two days of lodging complaint near the Bangla Sahib Gurudwara after their apprehension, he had took his daughter and Roshan to the PS Tilak Nagar. PW2 correctly identified the accused during his testimony in the court. In his cross-examination at the instance of the accused, PW2 deposed that he had not seen the accused Roshan along with his daughter when they had left. PW2 denied the fact that he had lodged a false complaint against the accused in order to implicate the accused as he was aware that his daughter and the accused were having affair with each other.
7. PW3/ ASI Anita deposed that on 23.11.2013, on the instructions of the IO, she had taken one girl namely Jyoti to DDU Hospital for medical examination. However, the girl had refused for internal medical examination. She deposed that after getting the said girl medically examined, she had handed over the MLC of the girl along with the custody of the girl to the IO. PW3 was not cross examined by the accused despite opportunity.
8. PW4/W/Ct. Saroj deposed that on 24.11.2013, she had along with ASI Dharampal went to Nirmal Chhaya and had brought one girl FIR no. 636/2013 Page 4 of 11 P.S. Tilak Nagar State Vs. Roshan Shahee namely Jyoti to PS Tilak Nagar for her counselling and officials from NGO had counselled the girl. She deposed that after the counselling, the girl was taken by her to Nirmal Chhaya and that her custody was handed over to the officials of Nirmal Chhaaya. PW4 was not cross-examined by the accused despite opportunity.
9. PW5/ HC Udham Singh deposed that on 24.11.2013, the accused was arrested by the IO in his presence. He proved the arrest memo Ex. PW5/A and personal Search memo of the accused Ex. PW5/B. PW5 correctly identified the accused during his testimony in the court.
10. PW6/ ASI Pramod deposed that on 22.11.2013, he had along with the IO/ ASI Dharampal went to the house of the complainant on receipt of DD No. 30A. He deposed that they had met the complainant, namely Vinod and his statement was recorded by the IO and on the basis of the same, the IO had prepared a Tehrir and the said tehrir was handed over to him to get the FIR registered. He deposed that he had got the FIR of the instant case registered on the basis of the said tehrir. In his cross examination, PW6 deposed that on the said day, they had reached at the spot at about 04:00 pm and that there were around 4-5 persons present at the spot. He deposed that he cannot recall whether the IO had recorded the statements of all such 4-5 persons or that whether the IO had asked those persons to join investigation.
11. PW7/ IO/ SI Dharampal deposed regarding the manner of the investigation. He proved the rukka Ex. PW7/A, the documents Ex. PW7/B. He deposed that on 23.11.2013, he got the information from the parents of the victim that the victim and the accused shall be coming to Tis Hazari Courts.
FIR no. 636/2013 Page 5 of 11P.S. Tilak Nagar State Vs. Roshan Shahee Thereafter, he had along with the complainant went to Tis Hazari Court, where the complainant identified his daughter and the accused Roshan. He also proved the arrest memo Ex. PW5/A and personal search memo of the accused Ex. PW5/B of the accused. He deposed that on 25.11.2013, he had got recorded the statement of the victim under section 164 Cr.P.C from the concerned Ld. MM. He deposed that after completion of investigation, he had filed the instant challan/ charge-sheet in the court. In his cross examination, PW7 deposed that he had not recorded the statement of the mother of the victim or that of the neighbours of the complainant. He also admitted the fact that he had not informed the Chowki In-charge, Tis Hazari Court, or the PS Subzi Mandi regarding the presence of the victim and the accused in Tis Hazari Court. He admitted the fact that the victim had in her statement under section 164 Cr.P.C, had stated to the Ld. Magistrate that she had went along with the accused at her own.
12. The accused had admitted the fact of registration of the FIR of the instant case and also admitted the fact of recording the statement of the victim under section 164 Cr. P.C, during the proceedings carried out under section 294 Cr. P.C. Therefore, vide order dated 01.11.2019, the prosecution evidence was ordered to be closed and the matter was proceeded to recording the statement of accused u/s 313 Cr. P.C. In his statement, accused denied all the allegations and pleaded innocence. He denied the fact that he had kidnapped the victim/daughter of the complainant. He submitted that he was having prior acquaintance with the victim as he was having shop in the same locality, where the victim was living. It was his version that on the day of the alleged incident, the victim had come to him and had requested him to take her to Shish Ganj Gurudwara to pay obeisance.
FIR no. 636/2013 Page 6 of 11P.S. Tilak Nagar State Vs. Roshan Shahee He submitted that therefore, he had taken the victim to the said Gurudwara. He further stated that on the date of the alleged incident, the victim was major. It was the version of the accused that the father of the victim had lodged a false complaint against him as he was under an impression that the accused was going to marry his daughter. The accused submitted that he does not wished to lead any defence evidence. Therefore, DE was closed at the request of the accused and the matter was fixed for final arguments.
13. I have heard the Ld. APP for the State and Ld. Counsel for the accused. Record has been perused.
14. In the instant case, apart from the testimony of the complainant/PW2, and the victim herself/PW1, all the other prosecution witnesses are related to the investigation of the present case and their respective testimony, mere proves the factum of registration of FIR, the medical examination reports of the victim and the fact the both the victim and the accused were apprehended when they were present at Tis Hazari Courts. Thus, the success or failure of the case of the prosecution hinges on the testimony of PW1 and PW2. The only question which has to been answered is whether, the act of the accused as has been alleged by PW1 and PW2 in their respective testimony, fulfills the ingredients of the offence of kidnapping punishable under section 363 IPC.
15. Coming to the facts of the instant case, though, the accused has disputed the fact that the victim Ms. Jyoti Saluja/PW2 was a minor FIR no. 636/2013 Page 7 of 11 P.S. Tilak Nagar State Vs. Roshan Shahee on the date of the alleged offence. However, the documentary evidence (birth certificate Mark A) which is available on record proves beyond doubt that the victim was a minor on the date of the incident. At the same time, the victim/ PW2 has herself stated in her statement under section 164 Cr. P.C. to the Ld. Magistrate that on the day of her statement, her age is around 17 years. Thus, keeping in view the overwhelming evidence, available on record, I am of the opinion that the prosecution has been able to prove the fact that the victim/ daughter of the complainant/PW2 was a minor on the day of the alleged incident.
16. At the same time, during the course of Final arguments, a two-fold contention, has raised by Ld. Counsel for the accused. It has been argued that in the first place, the victim Jyoti/ PW1 had herself abandoned the guardianship of her father/complainant and that, in the second place the accused in doing what he allegedly did, did not in fact take away the victim Ms. Jyoti Saluja/PW1, out of the keeping of her lawful guardian.
17. It is no more res integra that taking or enticing away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping punishable under section 363 IPC. In the instant case, the only question which has to be answered is whether the conduct of the accused of allowing the victim/PW1 to accompanying him to Shish Ganj Gurudwara is "enticement" or the same amounts to "taking", out of the keeping of the lawful guardian. In my opinion, the conduct of the accused has been testified by the prosecution witnesses referred above does not constitutes in law "taking". There is not a word in the deposition of minor Victim/ PW1 Ms. Jyoti Saluja from which an inference could be drawn that she left the house of his FIR no. 636/2013 Page 8 of 11 P.S. Tilak Nagar State Vs. Roshan Shahee father/ complainant/PW2 at the instance or even a suggestion of the accused. In fact, in her statement recorded under section 164 Cr. P.C., she has candidly admitted that on the day of the alleged incident i.e. on 22.11.2013, she had left her house as her parents were sending her to her uncle's place at Jhansi, M.P. She has further stated in her statement that after leaving her house, she had called the accused Roshan on his mobile from an STD Booth and thereafter, she had along with accused Roshan Shahee went to Shish Ganj Gurudwara, Chandni Chowk. Thereafter, on the following day, both of them had gone to Tis Hazari Court for getting married. There is no statement of the Victim that the accused took her to Shish Ganj Gurudwara or to Tis Hazari Court, by force or blandishments or anything like that. On the other hand, the evidence of the minor girl/victim/PW1, leaves no doubt that she had out of her free will, left the house of the complainant/her father/PW2 to proceed to some other place in order to enable her to enter into wedlock with the accused, as she was in love with the accused. The accused, by complying with her wishes of marrying her can by no stretch of imagination be said to have taken her out of the keeping ,of her lawful guardian/ Complainant/PW2. The fact of her accompanying the accused all along is quite consistent with PW1/Smt. Jyoti's own desire to be the wife of the accused in which the desire of accompanying him wherever he went was of course implicit. In these circumstances, there is nothing on record from which an inference could be drawn that the accused had been guilty of taking away Ms. Jyoti Saluja/PW1 out of the keeping of her father/ PW2. She willingly accompanied him/accused and the law did not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him. The victim/PW1 was not a child of tender years who was unable to think for herself but was on the verge of attaining majority and was capable of knowing what was good and what was bad for her. She was not an uneducated FIR no. 636/2013 Page 9 of 11 P.S. Tilak Nagar State Vs. Roshan Shahee or un-sophisticated village girl but a student who had probably all her life lived in Delhi and was thus far more capable of thinking for herself and acting on her own than perhaps a rustic girl hailing from a rural area.
18. At the same time, it is pertinent to mention that the prosecution has failed to show that some kind of inducement was 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. The prosecution has also failed to show/prove that the accused had at some earlier stage solicited or persuaded the minor victim to do so.
19. Thus, the inescapable conclusion that can be arrived at is that cogent and adequate evidence is lacking and thus, it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house and joined the accused and the accused helped her in her design not to return to her guardian's house by taking her along with him from place to place. Even if, the version of the prosecution witnesses is accepted as gospel truth, the conduct of the accused as has been alleged 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".
20. For the aforesaid reasons, it is concluded that the prosecution has failed to prove the charges for offence punishable u/s 363 IPC against the accused. Accordingly, the accused Roshan Shahee stands acquitted in respect of the above stated charge.
FIR no. 636/2013 Page 10 of 11P.S. Tilak Nagar State Vs. Roshan Shahee
21. Copy of judgment be given to the accused free of cost and copy of judgment be placed on case file.
22. File be consigned to Record Room.
Digitally signed by PUNEETDecided on 02.03.2020 PUNEET NAGPAL
Announced in the Open Court NAGPAL Date:
2020.03.02
09:56:53 +0530
(PUNEET NAGPAL)
MM-7, West District
THC/Delhi
FIR no. 636/2013 Page 11 of 11
P.S. Tilak Nagar
State Vs. Roshan Shahee