Delhi District Court
State vs . Itesh Kumar @ Rahul Kumar on 6 August, 2022
IN THE COURT OF MS MANSI MALIK,
METROPOLITAN MAGISTRATE03, NORTH WEST,
ROHINI COURTS, DELHI
Cr. Case No. 533027/2016
FIR No. : 49/2013
P.S. : Rithala Metro
State Vs. Itesh Kumar @ Rahul Kumar
U/s. 363 IPC
State
v.
Itesh Kumar @ Rahul Kumar
S/o Sh. Jamana Prasad,
R/o Vill. & PS Gursarai, The Grotha,
Mohalla Gandh Nagar,
Jhansi, U.P.
Date of institution of case : 23.01.2015
Date of reserving the judgment : 21.07.2022
Date of pronouncement of judgment : 06.08.2022
JUDGMENT
1. S. No. of the Case: 533027/2016 2. Date of Commission of Offence: 25.11.2013 3. Date of institution of the case: 23.01.2015 4. Name of the complainant: Sh. Anil Kumar 5. Name of the accused: Itesh Kumar @ Rahul Kumar 6. Offence complained or proved: U/s 363 IPC 7. Plea of Accused: Not Guilty State vs. Itesh Kumar @ Rahul Kumar FIR no. 49/13 PS Rithala Metro Page No. 1/10 MANSI Digitally signed by MANSI MALIK Date: 2022.08.08 MALIK 16:48:59 +0530 8. Final Order: Acquitted 9. Date of Final Order: 06.08.2022 BRIEF FACTS AND REASONS FOR DECISION
1. Succintly, the case of prosecution is that the accused Itesh Kumar @ Rahul Kumar has been sent to face trial with the allegations that on 25.11.2013 at about 07:00 AM at Metro Station, Rohini West, Delhi, within the jurisdiction of PS Rithala Metro Station, accused wrongfully kidnapped/abducted Kumari Yamini D/o Sh. Anil Kumar with an intention to secretly and wrongfully confine her. Investigation was carried out. Upon completion of the investigation the instant chargesheet for the offence punishable under Section 363 IPC was filed by the investigating officer against the accused. The accused was then summoned by the Ld. PO at the time.
2. The copy of charge sheet and relevant documents was supplied to the accused in compliance of Section 207 of Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.PC).
3. Prima facie case was made out and charge for offence punishable under Section 363 Cr.P.C. was framed on 27.06.2017 to which the accused pleaded not guilty and claimed trial. Thereafter, the matter was fixed for recording of prosecution evidence.
4. In order to substantiate the allegations, the prosecution examined six witnesses. At the onset it would be appropriate to have glance at the gist of deposition made by the witnesses:
State vs. Itesh Kumar @ Rahul Kumar FIR no. 49/13 PS Rithala Metro Page No. 2/10Digitally signed by MANSI MANSI MALIK Date:
MALIK 2022.08.08 16:49:21 +0530
5. PW1 Anil Kumar deposed that on 25.11.2013 her daughter namely Yamini went to her college but did not reach there and went for tour instead of college. PW1 fur ther deposed that he had made a missing complainant Ex. PW1/A and also made a search for her daughter. PW1 further deposed that he also went to the college of her daughter at Faridabad and got information that his daughter was absence from 25.11.2013. PW1 further deposed that he had provided matriculation certificate, photograph and her daughter's mobile number to the IO. PW1 further deposed that police officials recovered his daughter from Nizamudin Railway Station and handed over to them vide memo Ex. PW1/A. PW2 Rajesh @ Raj deposed on similar lines as of PW1. Ld. APP for the state also cross examined PW1 & PW2 after seeking permission from the Court as they had not come up with the complete facts of the case. PW1, and PW2 were also duly crossexamined by the Ld. counsel for the ac cused.
6. PW3 Ms. Yamini deposed that on 25.11.2013, she went to college in the morning by train and got down at New Delhi Railway Station and from there she reached at New Delhi metro station where she lost her purse and from there she called one known person and from there she went to Badarpur Metro Station and that person in troduce her to accused Itesh Kumar @ Rahul Kumar. PW3 further deposed that she had went to Jhansi with accused Jhansi and remained there for twothree days and thereafter she returned to her home. Ld. APP for the state also cross examined the witness after seeking permission from the Court as she had not come up with the complete facts of the case. PW3 was duly crossexamined by the Ld. Counsel for the accused.
7. PW4 Ct. Mohit deposed that on 01.12.2013, he was posted at PS Rithala Metro as Constable and on that DO handed over to him rukka and copy of FIR of the present State vs. Itesh Kumar @ Rahul Kumar FIR no. 49/13 PS Rithala Metro Page No. 3/10 Digitally signed MANSI by MANSI MALIK MALIK Date:
2022.08.08 16:49:30 +0530 case and he went to Rohini East Metro Station and handed over the copy of FIR and Rukka to IO/ASI Ramesh Kaushik and IO obtained the photographs, date of birth certificate and telephone number of Yamini from her father and IO sent request letter to DCP Office for the CDR of mobile number of Yamini and IO recorded his state ment. Thereafter, he alongwith W/HC Laxmi, Ct. Pradeep, Ct. Pawan Goel and ASI Ramesh Kaushik went to Nizamuddin Railway Station on the information of a secret informer and at about 10:00 accused Itesh and prosecutrix Yamini reached there and they apprehended the accused and the prosecutrix was apprehended by W/HC Laxmi. IO arrested the accused vide arrest and personal search memo Ex PW4/A and Ex PW4/B, the IO also recorded the disclosure statement of the accused Ex. PW4/X and he also prepared the recovery memo of Yamini Ex. PW4/C. The witness was duly cross examined by Ld. Counsel for the accused.
8. PW5 W/HC Laxmi desposed that on 12.12.2013, she alongwith Ct. Mohit, Ct. Pradeep, Ct. Pawan Goel and ASI Ramesh Kaushik went to Nizamuddin Railway Station on the information of a secret informer and at about 10:00 accused Itesh and prosecutrix Yamini reached there and we apprehended the accused and the pros ecutrix was apprehended by W/HC Laxmi. IO arrested the accused vide arrest and personal search memo Ex PW4/A and Ex PW4/B, the IO also recorded the disclo sure statement of the accused Ex. PW4/X and he also prepared the recovery memo of Yamini Ex. PW4/C. The witness was duly cross examined by Ld. Counsel for the accused.
9. PW6 IO/SI Ramesh Kaushik deposed that 01.12.2013, he was posted at PS Rithala metro as SI and on that day complainant Mr. Anil kumar lodged complaint re garding missing of his daughter Ms. Y (name withheld) from his house on 25.11.2013 and complaint is already Ex. PW1/A. Thereafter he prepared rukka State vs. Itesh Kumar @ Rahul Kumar FIR no. 49/13 PS Rithala Metro Page No. 4/10 Digitally signed by MANSI MANSI MALIK MALIK Date:
2022.08.08 16:49:38 +0530 which is Ex. PW5/A and handed over the same to DO for registration of case. Ther after, he alongwith the complaint reached at Metro Station Rohini West and prepared site plan which is Ex. PW5/A. After some time, Ct. Mohit reached and handed over copy of FIR and rukka to him. He obtained photographs of missing girl alongwith her date of her birth certificate from her father. On 12.12.2013, on information from a se cret informer we went to Nizamuddin station and at about 09:30 AM to 10:30 AM, accused Itesh and prosecutrix Y came there and were apprehended by us. He arrested the accused vide arrest and personal search memo Ex PW4/A and Ex PW4/B, he also recorded the disclosure statement of the accused Ex. PW4/X and he also pre pared the recovery memo of Yamini Ex. PW4/C. After completion of investigation chargesheet was filed by him. The witness was duly cross examined by Ld. Counsel for the accused.
10. The accused also admitted the genuineness of FIR no. 49/13 PS Rithala Metro i.e Ex. P1, and Statement of prosecutrix Yamini dated 19.12.2013, Ex. P2 u/s 294 Cr.PC, without admitting the contents of the same. In view of the above, witnesses mentioned at serial no. 6 and PW Ms. Rajani Ranga, Ld. MM in the list of prosection witnesses were dropped. Prosecution evidence was thereafter closed on 17.05.2022.
11. Statement of accused person was recorded u/s 313 Cr.PC., wherein all the incriminating evidence was put to the accused, to which he stated that he has been falsely implicated in this case. Further, the accused person did not opt to lead defence evidence and the matter was listed for final arguments.
12. The Court has carefully perused the case record and has heard arguments advanced by Ld. APP for the state as well as by Ld. Defence counsel.State vs. Itesh Kumar @ Rahul Kumar FIR no. 49/13 PS Rithala Metro Page No. 5/10
MANSI Digitally signed
by MANSI MALIK
Date: 2022.08.08
MALIK 16:49:53 +0530
13. Short point for determination before the court is as under "Whether on 25.11.2013 at about 07:00 AM at Metro Station, Rohini West, Delhi, within the jurisdiction of PS Rithala Metro Station, accused wrongfully kidnapped/abducted Kumari Yamini D/o Sh. Anil Kumar with an intention to secretly and wrongfully confine her?"
14. It is argued by Ld. APP for the state that from the ocular and documentary evidence on record, prosecution has proved beyond reasonable doubt that accused wrongfully kidnapped Yamini Kumari and submitted that accused be convicted of the offence charged.
15. Per contra, it is argued by the Ld. counsel for the accused that accused is completely innocent as the victim Yamini went alongwith the accused with her consent and that no kidnapping has taken place in the present matter. At the end, it is submitted that the prosecution has miserably failed to prove its case beyond reasonable doubt and therefore, the accused is liable to be acquitted of the alleged offence.
16. I have heard the rival submissions and have also carefully gone through the entire material available on record and evidence led on behalf of the prosecution. My findings on the point for determination and brief reasons for the same are now being discussed in following paragraphs.
17. At the outset, it is necessary to reproduce the concerned sections which are relevant to the case at hand:State vs. Itesh Kumar @ Rahul Kumar FIR no. 49/13 PS Rithala Metro Page No. 6/10 Digitally signed
MANSI by MANSI
MALIK
MALIK Date: 2022.08.08
16:50:00 +0530
Section 361. Kidnapping from lawful guardianship.--Whoever takes or entices any minor under 1[sixteen] years of age if a male, or under 2[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.
Section 363. Punishment for kidnapping.--Whoever kidnaps any person from 1[India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
18. Therefore, Section 363 IPC provides punishment for the offence of kidnapping where kidnapping has been defined in Section 361 IPC. The Hon'ble Supreme Court in the in the case titled as State of Haryana v. Raja Ram (1973 AIR 819) has observed as follows:
"The object of this section seems as much to protect the minor children from being seduced for improper purposes as to protect the rights and privileges of guardians having the lawful charge or custody of their minor wards. The gravamen of this offence lies in the taking or enticing of a minor under the ages specified in this section, out of the keeping of the lawful guardian without the consent of such guardian. The words "takes or entices any minor out of the keeping of the lawful, guardian of such minor" in S. 361, are significant. The use of the word "keeping" in the context connotes the idea of charge, protection, maintenance and control, further the guardian's charge and controlappears to be compatible with the independence of action and movement in the minor, the guardian's protection and control of the minor being available, whenever necessity arises. On plain reading of this section the consent of the minor who is taken or enticed is wholly immaterial : it is only the State vs. Itesh Kumar @ Rahul Kumar FIR no. 49/13 PS Rithala Metro Page No. 7/10 Digitally signed by MANSI MANSI MALIK Date:
MALIK 2022.08.08 16:50:06 +0530 guardian's consent which takes the case out of its purview. Nor is it necessary that the taking or enticing must be shown to have, been by means of force, or fraud. Persuasion by the accused person which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardian would be sufficient to attract the section"
Therefore, "taking" or "enticing" is an essential ingredient of Section 361 IPC. As discussed above, the taking or enticing need not be only be by physical force but it can also mean taking or enticing by way of persuasion/inducement or any other manner which influences the victim to leave her parents/guardians and accompany the accused. However, it also means that if the victim/minor voluntarily leaves her house completely uninfluenced by any inducement or promise by the accused person, then accused persons cannot be said to have committed an offence u/s 361 IPC.
19. In the present case, the victim was approximately of 18 years of age at the time of the incident and hence it cannot be said that she was not able to understand the consequences of her act. In her testimony as PW3, she has stated that she went with the accused to Mathura, Agra and Jhansi and returned to Delhi on 14.12.2013 where they were apprehended by the police. She has also categorically stated in her cross examination that the accused had not forcefully or coercively taken her with him and that she went with him on her sweet will. In her entire testimony, there is no mention of any inducement/promise by the accused by which she was influenced and on basis of which she agreed to accompany him and hence it cannot be said that she was taken or enticed by the accused. Further, PW1, father of the victim has also stated in his crossexamination that his daughter was not kidnapped by the accused and that his daughter never went missing and had gone a college tour. He further stated that his daughter was not recovered from the possession of the accused and that his daughter never told him that she was accompanied by the accused. PW2, mother State vs. Itesh Kumar @ Rahul Kumar FIR no. 49/13 PS Rithala Metro Page No. 8/10 Digitally signed by MANSI MANSI MALIK Date:
MALIK 2022.08.08 16:50:14 +0530 of the victim has also reiterated the same as stated by PW1.
20. Therefore, in view of the aforesaid discussion, it can be said that the essential ingredients of Section 361 IPC that is "taking" or "enticing" are not fulfilled in the present case as the victim went with the accused out of her own free will and without any inducement or promise on his part. Hence, the accused cannot be held liable for the offence u/s 363 IPC as the ingredients for the same are not made out in the present case. The prosecution has thereby failed to prove its case against the accused beyond reasonable doubt.
21. At this stage, it would also be worthwhile to refer to the judgment of Hon'ble Supreme Court in Sarwan Singh vs State of Punjab (AIR 1957 SC 637) regarding the nature of burden of proof on the prosecution to prove its case. The ratio of this judgment is applied with the same vigour even after passing of more than 50 years. It was held in this case that: "There may also be an element of truth in the prosecution story against the accused. Considered as a whole, the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted." Again in Jagdish Prasad vs State (Govt Of NCT Of Delhi) 2011 (9) LRC 206 (Del), the Hon'ble High of Delhi had observed that "It is well settled that in a criminal case, in order to bring home the guilt of the accused, the prosecution is required to establish the guilt beyond a shadow of reasonable doubt. If, on consideration of the prosecution evidence, a reasonable doubt remains in respect of culpability of the accused, he is entitled to benefit of doubt.
22. In view of the above discussion, this Court is of considered view that in the State vs. Itesh Kumar @ Rahul Kumar FIR no. 49/13 PS Rithala Metro Page No. 9/10 Digitally signed by MANSI MANSI MALIK MALIK Date:
2022.08.08 16:50:38 +0530 present case the prosecution has failed to prove its case against the accused Itesh Kumar @ Rahul Kumar beyond reasonable doubt. Accordingly, the accused Itesh Kumar @ Rahul Kumar is acquitted for the offence punishable u/s 363 IPC.
23. Bail bonds u/s 437A of CrPC are to be furnished which would remain valid for a period of six months.
Digitally
signed by
MANSI
MANSI MALIK
Announced in open Court (MANSI MALIK)
MALIK Date:
2022.08.08
on 6th Day of August, 2022 Metropolitan Magistrate
16:50:50
NorthWest, Rohini, Delhi
+0530
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