Delhi District Court
Tis Hazari Courts vs . on 30 November, 2007
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IN THE COURT OF SH. RAJNEESH KUMAR GUPTA, ASJ,
TIS HAZARI COURTS, DELHI.
Crl.(A) 24/07
FIR No. 11/05
PS Ashok Vihar
Bhawna @ Shashi
Vs.
State
Judgment
This is an appeal against the judgment dated
12.3.07whereby the appellant was convicted U/s 363/365 IPC and against the order of sentence dt. 5.5.07 whereby the appellant was sentenced to RI for a period of three years for offence punishable U/s 363 IPC and RI for a period of three years for offence punishable U/s 365 IPC and both the sentences has to run consecutively.
2. I have heard the Ld. counsel for the appellant and Ld. APP for the state and perused the file.
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3. In brief the case of the prosecution is that on 5.1.05 at about 6.30 pm from H. No. WP-301/2 Wazirpur Village, appellant has kidnapped the child namely Pushpam who was ten months old and had wrongfully confined him. The FIR was registered on the statement of the Anjali Devi, the mother of the child. Appellant was arrested in this case on 26.5.05 as she was already arrested in a case FIR no. 318/05 PS Jahangir Puri. Appellant was alleged to have sold the child to some unknown person who was the resident of Amritsar for the sum of Rs. 10,000/- and the child was not recovered.
4. After investigation the charge-sheet was filed U/s 363/365/369 IPC and charge was framed U/s 363/365/369 IPC against the appellant.
5. To prove its case, prosecution has examined nine witnesses. Appellant has examined herself as DW1.
PW1 HC Om Prakash has proved the FIR as Ex.
3PW1/B. PW4 HC Monika had deposed that the IO after the permission of the court had arrested the appellant vide memo Ex. PW4/B. The IO had also recorded disclosure statement of the appellant.
PW6 L/Ct. Sangita had taken the appellant for her medical examination to the hospital.
PW8 Ms. Archana Sinha has proved the TIP proceedings of the appellant as Ex. PW8/A in which the appellant has refused to participate in the TIP proceedings.
PW5 ASI Balwan Singh had deposed that on 6.1.05 he had recorded the statement of the complainant. He got the FIR registered. He had tried to search the kidnapped child. On 6.1.05 the complainant had handed over to him a bag of cloth belonging to the appellant which was seized by him vide memo Ex. PW4/B. PW9 Insp. Kamal Singh who is the investigating officer of the case had deposed that on 15.2.05 the investigation of the case was handed over to him. On 21.5.05 4 the complainant had informed him that the accused was arrested by the police officials of the PS Jahangir Puri and had also handed over to him the photograph of that lady and he came to know that the appellant was arrested in case FIR no. 318/05 of PS Jahangir Puri. On 26.5.05 the appellant was arrested in this case vide memo Ex. PW4/B. On 1.6.05 he obtained the PC remand of the appellant and during the investigation they had went to the village Tapala and Amritsar, Punjab.
PW 2 Smt. Anjali Devi, the complainant had deposed that on 5.1.05 the appellant had come to her home to give Polio drops. She stated that she was told by the appellant that she wanted to take her younger son for giving toffees on which the appellant was informed that her son is less than one year and he does not take toffee. Then the appellant asked about her elder son and stated that she will take him for getting toffees for him. At the time of making he aforesaid statements, she was sitting on the gate as there was no electricity. Her elder son came in the meanwhile from 5 tuition. She thereafter left her younger child with her elder son and went to toilet. At that time her younger child was aged 10 ½ months. When she came out from the bathroom she saw her elder child with the packet of biscuits and namkeen and she was told by her elder child that the appellant had taken both her children out and after getting biscuits and namkeen, she sent her elder son back saying that she is coming back after getting her footwear repaired. However, she did not came back with the younger child. She lodged the police complaint Ex. PW2/A. She had seen the photograph of the appellant on T.V. She had got the photograph of the appellant from the PS Jahangir Puri which is Ex. P1 and the photograph of her son is Ex. P2. The recovery memo of the articles which the appellant has left in her house on 5.1.05 is Ex. PW2/B. In cross-examination she had deposed that she had gone to the PS on the same night after the incident but nobody took cognizance on her complaint. The police had not written her complaint till 24 hours. She did not remember exactly after how many days of the incident, she had seen the 6 appellant on T.V. There was news showing the appellant to have been arrested in connection with kidnapping of children when she had seen her. There was electricity when the appellant came to her house.
PW3 Master Amrit had deposed that on 5.1.05 the appellant came twice in their house. His mother had gone to bathroom and the appellant took his brother Pushpam. She got him biscuit and namkeen and asked him to keep these articles at home and she would be coming after getting her footwear repaired. He was sent with the biscuit and namkeen and the appellant went with the Pushpam.
In cross examination he had deposed that he had seen the appellant properly as at that time electricity connection was operational when she was taking his brother. The electricity went thereafter.
Appellant has examined herself as DW1 and had deposed that she was called in the court on 30.05.05 and was shown the photograph of the child by the IO Kamal Meena who asked her whether she had seen the child of the 7 photograph whose photograph was shown to her. IO had made her sign few papers and took her to Punjab and was taken to village Tapala. She was taken back to Delhi and was again taken to Chandigarh and in Chandigarh in a hotel the IO had pressurized her to commit immoral act with him.
6. Ld. counsel for the appellant has argued that the evidence of PW2 is not reliable as it is full of contradictions. The case of the prosecution is unbelievable. The evidence of PW3 is also not reliable as he is a tutored witness as he is a child witness. No public witness has been joined in the investigation of the case by the IO. Appellant has been falsely implicated in the case by the IO as she was in custody in another case. There is no reliable evidence against the appellant. Trial court has erred in convicting the appellant.
On the other hand Ld. APP for the state has argued that there is no infirmity in the impugned judgment and order on sentence. Prosecution witnesses are reliable witnesses. Appeal is liable to be dismissed. 8
7. PW2 Smt. Anjali, who is the mother of the alleged kidnapped child namely Pushpam and PW3 Master Amrit, who is the brother of the Pushpam, are the material witnesses of the case as they are the witnesses to the incident. Both these witnesses have supported the case of the prosecution. They have identified the appellant being the lady who has has taken away the child. They have no grudge or reason to depose against the appellant.
After going through the evidence of PW2 and her statement Ex. PW2/A on the basis of which the FIR was registered, I do not find any material contradictions in the testimony of PW2. PW3 has been cross-examined by the Ld. defence counsel but no material has been come on record to show that he is a tutored witness. I do not find any material on record to disbelieve the testimonies of PW2 and PW3. So, in my view they are reliable witnesses.
8. The defence of the appellant that at the alleged 9 date of incident she was not in Delhi and she had come to Delhi only on 17.2.05, does not inspire confidence as the appellant has not put any such suggestion to the PW2, PW3 and PW9 who is the investigating officer of the case. Appellant has also made allegations of immoral activities against the PW9 but such allegations are also without any merits as in cross-examination of PW9, the appellant has not put any such questions regarding the immoral activities of the PW9 towards her.
9. The argument of the Ld. counsel for the appellant that no public witness was joined in the investigation of the case is without any merits as the alleged incident has happened in the presence of PW2 and PW3 who, as discussed above, have supported the case of the prosecution. No public witness was present at the time of alleged incident. So, there is no necessity for the IO to join any public witness.
In view of the above discussions, I am of the opinion that from the evidence produced by the prosecution, prosecution 10 has proved its case beyond reasonable doubt against the appellant U/s 363/365 IPC.
10. Ld. counsel for the appellant has argued that the sentence awarded by the trial court to the appellant is harsh one. Appellant is a lady and is having four minor children and lenient view should be taken against her. There is no past criminal record against her.
In view of the facts that the child kidnapped by the appellant has not been recovered and the seriousness of the offence, I am of the opinion that appellant does not deserve any leniency in the sentence awarded to her by the trial court.
11. Keeping in view the above discussions, I do not find any infirmity in the impugned judgment of the trial court and order on sentence awarded to the appellant by the trial court. So, the impugned judgment and order on sentence are upheld. Appeal is without any merits. Accordingly, it is dismissed. Copy of the judgment be supplied to the appellant 11 free of cost.
12. Trial court record be sent back along with the attested copy of the judgment. Appeal file be consigned to Record Room.
Announced in the open court (RAJNEESH KUMAR GUPTA)today i.e. on 30.11.07 Additional Sessions Judge, Tis Hazari Courts, Delhi.