Delhi District Court
Mukesh Sethi vs Mangat Ram on 13 April, 2021
IN THE COURT OF SH REETESH SINGH: ADDITIONAL SESSIONS
JUDGE-2 (EAST), KARKARDOOMA COURTS, DELHI
CA No.16/2020
In the matter of
1. Mukesh Sethi
S/o Sh. Ramesh Sethi
2. Smt. Rama Sethi
W/o Sh. Mukesh Sethi
Both R/o A-49, Jatar Nagar,
Delhi-110051.
............... Appellants.
Vs.
Mangat Ram
S/o Late Shiv Ram
R/o 138, Gali no. 10,
West Guru Angad Nagar,
Delhi-110092.
................. Respondent
Date of institution : 28.01.2020
Final arguments : 07.04.2021
Date of order : 13.04.2021
Mukesh Sethi & Anr. Vs Mangat Ram AND Mangat Ram Vs Mukesh Sethi & Ors. Page 1 of 13
AND
CA No.178/2019
In the matter of
Mangat Ram
S/o Late Shiv Ram
R/o Previously resident of H. No. 4/332,
Sector-04, Near Chaner Laxmi Hospital,
Ghazibad, Uttar Pradesh.
AND
At present H.No. 138, Gali no. 11,
West Guru Angad Nagar,
Delhi. ............... Appellant
Vs.
1. Mukesh Sethi
S/o Sh. Ramesh Sethi
2. Smt. Rama Sethi
W/o Sh. Mukesh Sethi
Both R/o A-48, Parvana Road,
Jatar Nagar, Delhi-110051.
3. State (NCT of Delhi) ................. Respondents
Date of institution : 14.11.2019
Final arguments : 07.04.2021
Date of order : 13.04.2021
Mukesh Sethi & Anr. Vs Mangat Ram AND Mangat Ram Vs Mukesh Sethi & Ors. Page 2 of 13
ORDER
1. As both these appeals arise out of the same proceedings and are between the same parties, they are being decided together by this common order.
CA No. 16/2020 titled as Mukesh Sethi & Anr. Vs Mangat Ram:
2. This appeal has been filed against the impugned order dated 27.07.2019 by which the appellants Mukesh Sethi and Rama Sethi have been convicted for the offence under section 363/34 of the IPC. By subsequent order dated 21.09.2019 on sentence, the appellants have been released on probation of good conduct under section 4 of the Probation of Offenders Act, 1958.
CRL. APPL. NO.178/2019 titled as Mangat Ram Vs Mukesh Sethi & Ors.
3. This appeal has been filed by the complainant Mangat Ram against the impugned order dated 21.09.2019 on sentence by which the convicts Mukesh Sethi and Rama Sethi were released on probation of good conduct under section 4 of the Probation of Offenders Act, 1958.
ARGUMENTS ON BEHALF OF CONVICTS MUKESH SETHI AND RAMA SETHI
4. Sh. Mahesh Saxena, Ld. Counsel for the convicts Mukesh Sethi and Rama Sethi has argued that there was no evidence on the record to suggest that the appellants had 'kidnapped' the minor victim Ms. 'R'. He submitted that the facts which have come on record clearly establish that it was the victim Ms 'R' who on her own accord had left the guardianship of the complainant Mangat Ram and had Mukesh Sethi & Anr. Vs Mangat Ram AND Mangat Ram Vs Mukesh Sethi & Ors. Page 3 of 13 gone to reside with her natural parents Mukesh Sethi and Rama Sethi. He submitted that the offence of kidnapping was defined under section 361 of the IPC and that the ingredients of the said offence were 'taking' or 'enticing' any minor out of the keeping of the lawful guardian of such minor without the consent of such guardian. He submitted that when the victim Ms 'R' has herself deposed that she on her own accord had left the guardianship of the complainant Mangat Ram and had gone to reside with the appellants, the offence of kidnapping was not made out.
ARGUMENTS ON BEHALF OF THE COMPLAINANT MANGAT RAM
5. On the other hand, Sh. C.S. Tyagi, Ld. LAC for the complainant Mangat Ram has argued that the facts of the present case were not in dispute. He stated that Mangat Ram is the Mama (maternal uncle) of Smt. Rama Sethi. The victim Ms 'R' was born to the convicts Mukesh Sethi and Rama Sethi on 30.09.2000. Mukesh Sethi and Rama Sethi had vide registered deed of adoption dated 09.07.2002 gave their daughter Ms 'R' in adoption to the complainant Mangat Ram. Later on, the convicts took away Ms 'R' from the lawful guardianship of Mangat Ram without his consent and did not return her custody to Mangat Ram. He submitted that the offence of kidnapping of Ms 'R' was clearly made out and the Ld. Trial Court rightly convicted Mukesh Sethi and Rama Sethi for the said offence.
6. Sh. C.S. Tyagi, Ld. LAC for the complainant had further argued that on 20.05.2008 the convicts had kidnapped Ms 'R' and since then they did not return her custody to him. He submitted that the complainant had prosecuted his complaint since 27.08.2008 and despite conviction, the Ld. Trial Court did not Mukesh Sethi & Anr. Vs Mangat Ram AND Mangat Ram Vs Mukesh Sethi & Ors. Page 4 of 13 impose any sentence of imprisonment upon the convicts nor awarded any compensation to the complainant. He submitted that this was not a fit case for grant of benefit of probation to the convicts under the Probation of Offenders Act, 1958.
7. I have heard the Ld. Counsel for the convicts / appellants and the Ld. Counsel for the complainant. I have perused the record of the Trial Court.
8. The present proceedings arise out of CC no. 4781 of 2016 titled Mangat Ram Vs Mukesh Sethi and others which was filed on 26.08.2008 by the complainant before the Ld. Trial Court. The facts relevant to the present matter in the complaint are that the complainant Mangat Ram has stated that Ms 'R' was born on 30.09.2000 to Mukesh Sethi and Rama Sethi. Ms. 'R' was taken in adoption by the complainant when she was only 28 days old but the deed of adoption in this regard was executed between Mukesh Sethi, Rama Sethi and the complainant on 09.07.2002. It is alleged that on 20.05.2008 the accused persons /convicts forcibly entered the house of the complainant and asked him to withdraw another criminal case which had been instituted by the complainant against them. When the complainant refused to do so, the convicts/ appellants started threatening the complainant after which he called the police. The complainant was taken to the police station where he was detained for several hours. He was relieved at about 11:00 PM and when he got back home, he was informed by his mother Leelawati (complainant's mother) that at about 5:00 PM Ms. 'R' was forcibly taken / kidnapped by the convicts from a nearby shop where the child had gone to purchase some eatables for herself.
Mukesh Sethi & Anr. Vs Mangat Ram AND Mangat Ram Vs Mukesh Sethi & Ors. Page 5 of 139. The complainant Mangat Ram along with his complaint had filed an application under section 156 (3) of the Cr.P.C. praying for registration of an FIR. The Ld. Trial Court by order dated 28.08.2008 declined the prayer for registration of FIR and directed the complainant to lead evidence on his complaint. The complainant Mangat Ram had examined himself as CW-1 and his mother Smt. Leelawati as CW-2 at the pre-summoning stage. Although nine persons had been arrayed as accused persons in the complaint, the Ld. Trial Court by order dated 03.07.2009 issued summons only to the convicts i.e. Mukesh Sethi and Rama Sethi, the natural parents of the victim Ms 'R'. The complaint was thereafter fixed for pre-charge evidence. The complainant Mangat Ram and his mother Leelawati were examined/ cross-examined at pre-charge stage. However, Leelawati had died thereafter and she could not examined at the post-charge stage.
10. By order dated 21.10.2011 Ld. Trial Court framed charge for the offence under section 363/34 of the IPC against Mukesh Sethi and Rama Sethi. The convicts pleaded not guilty and claimed trial. At the post-charge stage Mangat Ram was cross-examined. On 27.02.2019 statements of the convicts under section 313 of the Cr.P.C. were recorded. Both Mukesh Sethi and Rama Sethi have, in their said statements under section 313 of the Cr.P.C., admitted that they had given their daughter Ms. 'R' in adoption to the complainant, but only after execution of adoption deed dated 09.07.2002. It is stated that the complainant did not take proper care of Ms 'R' and on 20.05.2008 Leelawati (mother of the complainant) had called them on the mobile phone of Mukesh Sethi and informed them that Ms. 'R' was not well. Mukesh Sethi and Rama Sethi then went to see Ms. 'R' and took her to a doctor and after getting her treated, they came back to their home. It is further stated that Ms. 'R' was since then residing with them. They stated that Ms. Mukesh Sethi & Anr. Vs Mangat Ram AND Mangat Ram Vs Mukesh Sethi & Ors. Page 6 of 13 'R' had informed them that the complainant did not take good care of her and that she did not want to live with the complainant.
11. In defence evidence, the convicts examined Ms. 'R' as DW-1. Ms. 'R' in her examination in chief has deposed as under:-
"I was residing with the maternal uncle of my mother, when I was 08 years old. He did not use to provide me with food and education properly. He also used to beat me. One day, I fell ill, then maternal grandmother of my mother called my parents and asked them to take me to the hospital for the medication. Then my parents came and took me to the Doctor and thereafter, they left me again in the house of maternal uncle of my mother, namely Sh. Mangat Ram. I went to live with my parents after 2-3 days as said Sh. Mangat Ram used to maltreat me. I want to live with my parents only."
(emphasis supplied)
12. As evident, the victim Ms. 'R' as DW-1 has deposed that she was residing with the complainant when she was eight years old. She stated that the complainant did not provide food or education to her and that the complainant used to beat her. One day when she fell ill, Leelawati (mother of complainant) called her parents and asked them to take her i.e. Ms. 'R' to the doctor. Ms. 'R' stated that after taking her to the doctor, Mukesh Sethi and Rama Sethi left her back in the house of the complainant Mangat Ram. After two to three days thereafter she i.e. Ms. 'R' left the house of the complainant Mangat Ram because of maltreatment and went to reside with her parents i.e. Mukesh Sethi and Rama Sethi.
13. It may be noted that DW-1 Ms. 'R' was examined as a witness in defence on 06.03.2019. That day she was 18 years old. She was cross-examined by the counsel for the complainant. She in her cross-examination Ms. 'R' Mukesh Sethi & Anr. Vs Mangat Ram AND Mangat Ram Vs Mukesh Sethi & Ors. Page 7 of 13 maintained that she used to be maltreated by the complainant Mangat Ram and that even Leelawati was aware of the same.
14. The question which arises for consideration is whether the facts which have come on record disclose the commission of the offence of kidnapping of Ms. 'R' by the appellants Mukesh Sethi and Rama Sethi. The offence of kidnapping is defined under section 361 of the IPC which reads as under: -
"361. Kidnapping from lawful guardianship.--Whoever takes or entices any mi- nor 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 mi- nor or person of unsound mind, without the consent of such guardian, is said to kid- nap such minor or person from lawful guardianship.
Explanation.--The words "lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other person. Exception.--This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith be- lieves himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose."
15. Section 361 of the IPC makes punishable the act of taking or enticing any minor out of the keeping of the lawful guardian of such minor without the consent of such guardian. In the present matter, the victim Ms 'R' as DW-1 herself has deposed that her parents Mukesh Sethi and Rama Sethi had been called by Leelawati for being provided medical attention due to her illness. After Mukesh Sethi and Rama Sethi took her to the doctor, they brought her back to the residence of the complainant. Two to three days thereafter Ms. 'R' herself left the residence of the complainant and went to reside with her parents i.e. Mukesh Sethi and Rama Sethi.
Mukesh Sethi & Anr. Vs Mangat Ram AND Mangat Ram Vs Mukesh Sethi & Ors. Page 8 of 1316. In the case of Arvind v. State of Gujarat reported in (2019) 11 SCC 617 the Hon'ble Supreme Court was pleased to hold as under: -
"4. On merits, it is apparent that the victim, in her deposition has stated that she has voluntarily gone with the appellant and she has not been taken away from the custody of her parents. Therefore, in our opinion, no case under Section 363 was made out."
17. In the case of Ram Das v. State of M.P. reported in (1970) 3 SCC 211 the Hon'ble Supreme Court was pleased to acquit a person accused of the offence of kidnapping under section 363 IPC. As the judgement is short, the same is reproduced as under: -
"2. The prosecution story, as accepted by the High Court, is that Mullu Singh, PW 1, Kumari Padma, PW 17, daughter of Mullu Singh and his wife Haribai, PW 2, lived in a quarter at Khamaria. The girl was at the relevant time a regular student of the Higher Secondary School, Khamaria. Ram Das, appellant, who was also a student, lived in a nearby quarter across the street and knew Kumari Padma. On November 25, 1966, Ram Das and Kumari Padma went to the office of the Sub-Registrar, Jabalpur and got an agreement, stated to be a marriage agreement, Ex. P-11, registered.
3. In her evidence Kumari Padma stated that she had got acquainted with Ram Das about six years ago and had developed friendship with him. She further stated that her parents harassed and perplexed her and would not let her eat and drink. She thought of committing suicide even. Regarding the execution of the agreement she stated thus:
"Before the execution of the agreement I had a meeting with Ram Dass. I had the meeting with him 2 or 3 days prior to the 25th. I had a talk at the house of Ram Das. Nobody came to call me there. I reached there of my own. I came off at 11 or 12 o'clock in the day. ....I proposed the execution of a marriage agreement. At first Ram Das did not agree to my request. Ram Das admonished me saying, 'first you study and then we shall think over this matter'. But as I was much distressed, I thought of committing suicide. For this reason, I said to Ram Das, 'if you do not agree, I will commit suicide'. On being persuaded by me Ram Das got ready."
Then she described about the purchase of a stamp paper and the execution of the agreement.
She further stated:
Mukesh Sethi & Anr. Vs Mangat Ram AND Mangat Ram Vs Mukesh Sethi & Ors. Page 9 of 13"After the agreement Ex. P-11 had been registered, myself, Shankar, Ajay and Kumari Jawa went to the cinema. Ram Das did not accompany us to the cinema. After seeing the picture I came to my father in the evening. On the next day, the 26th, I went to the school. I informed my father of the agreement in the evening. My father got much annoyed with me on hearing thereof. I was subjected to a good deal of beating. My father held a consultation with his friends, and it was decided that I should be sent away to Narsinghpur and there married to another place (sic). On hearing it I got nervous and went over to the house of Ram Das that very day in the night. But my sister Kusum followed me there and took me back. When my father heard of that, he locked me up in the house. The lock was put on the door of the verandah. Thereafter I remained confined at my house up to 30th November."
Later she stated:
"On 1-12-1966 my father was not at home. He left home in the morning. He would go to the factory daily. Perhaps that day too he went to the factory. I got an opportunity to come to the verandah. For this reason, I came into the verandah. I came there at 11 a.m. Then I broke open the lock on the outer door and went over to the house of Ram Das."
She added:
"I pushed out the door and thus broke the lock and came out. After breaking the lock I went out to the house of Ram Das accused."
4. The learned Counsel for the appellant, relying on S. Varandarajan v. State of Madras1 urged that on these facts it has not been established that there was any taking away or enticement within the meaning of Section 363 of the IPC and the High Court has omitted to consider that the girl after the registration of the agreement went back to her father's house. He contended that, according to the girl, she went back to her father's custody after the registration of the agreement and it was after a few days that she broke open the lock and went to stay with Ram Das. The learned Counsel for the respondent was unable to say that on these facts any offence under Section 363 had been made out.
5. We are accordingly of the view that no offence has been made out against the appellant under Section 363 of the IPC. In the result the appeal is allowed, the conviction and sentence passed on the appellant by the learned Sessions Judge and the High Court set aside and the appellant's bail bond cancelled."
(emphasis supplied)
18. In the cases of Arvind v. State of Gujarat and Ram Das v. State of M.P. (supra), the Hon'ble Supreme Court has been pleased to hold that where the Mukesh Sethi & Anr. Vs Mangat Ram AND Mangat Ram Vs Mukesh Sethi & Ors. Page 10 of 13 victim has herself left the custody of her guardian, no offence of kidnapping was made out under section 363 of the IPC.
19. In the present case as well, the victim Ms. 'R' has stated that her parents Mukesh Sethi and Rama Sethi were called by Leelawati to get her medical attention. After Mukesh Sethi and Rama Sethi took her to the doctor, they left her back at the premises of the complainant Mangat Ram. Two to three days thereafter she i.e. Ms 'R' on her own accord left the premises of the complainant and went to reside with Mukesh Sethi and Rama Sethi on account of maltreatment by Mangat Ram. Thus, there was no 'taking away' or 'enticement' on the part of Mukesh Sethi and Rama Sethi within the meaning of section 361 of the IPC so as to attract the offence punishable under section 363 of the IPC.
20. The Ld. Trial Court in the impugned order dated 27.07.2019 has observed that even though Mukesh Sethi and Rama Sethi had claimed that they had taken Ms 'R' for treatment to a doctor, they ought to have examined the doctor in question in defence to substantiate the said fact. The Ld. Trial Court has also observed that Mukesh Sethi and Rama Sethi in their statements under section 313 of the Cr.P.C. have stated that after they took Ms 'R' to the doctor they came back to their home with Ms 'R' and as such they did not return her custody to Mangat Ram.
21. Although, the Ld. Trial Court has referred to the statement of Ms 'R' as DW-1 in para no. 7 of the impugned order dated 27.07.2019, in the opinion of this court, the Ld. Trial Court has failed to accord due weightage to her statement. As observed above, Ms 'R' was born on 30.09.2000. She was given in adoption on Mukesh Sethi & Anr. Vs Mangat Ram AND Mangat Ram Vs Mukesh Sethi & Ors. Page 11 of 13 09.07.2002 and she is alleged to have been kidnapped in 20.05.2008 when she was about seven years and eight months old. She was examined as DW-1 on 06.03.2019 when she was aged about 18 years. She withstood cross-examination.
22. In criminal proceedings, the prosecution is required to establish the guilt of a person accused of an offence beyond reasonable doubt. In a case, such as the present case, where the victim of alleged kidnapping has herself deposed that she had left the guardianship of her lawful guardian on her own, it cannot be said that the prosecution has been able to establish the guilt of the accused beyond reasonable doubt. It is true that Mukesh Sethi and Rama Sethi in their statements under section 313 of the Cr.P.C. have stated that they had taken Ms 'R' home after visiting the doctor, the said statement as such cannot be read in isolation and without taking into consideration the statement of Ms 'R' so as to return a finding of guilt. The statement of Ms 'R' dents the case of the complainant and casts a doubt on the case set up against Mukesh Sethi and Rama Sethi.
23. Hence, for the reasons recorded above, the judgment dated 27.07.2019 of the Ld. Trial Court convicting Mukesh Sethi and Rama Sethi cannot be sustained. The same is set aside and Mukesh Sethi and Rama Sethi are acquitted of the offence under section 363 of the IPC.
24. The net result of the above discussion is as follows:-
(a) Criminal Appeal no. 16 of 2020 titled Mukesh Sethi and Anr. Vs Mangat Ram is allowed. The impugned order dated 27.07.2019 vide Mukesh Sethi & Anr. Vs Mangat Ram AND Mangat Ram Vs Mukesh Sethi & Ors. Page 12 of 13 which they were convicted is set aside. As a result thereof, the order dated 21.09.2019 on sentence is also set aside, and
(b) Criminal Appeal no. 178 of 2019 titled Mangat Ram Vs Mukesh Sethi & Ors. is dismissed.
(Reetesh Singh) ASJ-2/KKD/East/13.04.2021 Announced in open court on 13.04.2021 Mukesh Sethi & Anr. Vs Mangat Ram AND Mangat Ram Vs Mukesh Sethi & Ors. Page 13 of 13