Delhi District Court
State vs . Rihan on 30 August, 2014
State Vs. Rihan
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI
SC No : 07/2013
ID No. : 02401R0250232010
FIR No. : 36/2010
Police Station : Chandni Mahal
Under Section : 363/365/368/328 IPC
State
Versus
RIHAN
S/o Safir Ahmad
R/o 1186, Kalan Mahal,
Chandni Mahal, Delhi
.........Accused
Date of Institution : 02.06.2010
Date of committal of case : 04.08.2010
Date of judgment reserved : 22.08.2014
Date of judgment : 30.08.2014
Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the
State.
Sh. Azizul Rehman, Advocate, counsel for the accused
SC No. 07/13 Page 1 of 12
State Vs. Rihan
JUDGMENT:-
1. Briefly stated facts of prosecution case are that on April 3, 2010 Gyas Ahmed got recorded his statement Ex. PW18/B before the investigating officer SI Khalid Akhtar alleging that his nephew Mohd. Yasir was missing from home since April 2, 2010 at about 3 PM when he was playing outside his house. Though a search was made, yet, no clue was found. It was alleged that on April 3, 2010 at about between 9 AM to 10 AM, someone had made a call to him and informed that Mohd. Yasir was present near Masjid located at Astha hospital. Accordingly, he along with others reached there. It was alleged that at that time, Mohd. Yasir was not in his full sense and he was wearing a frock and hat. On his statement, an FIR for the offence punishable under Section 363 IPC was got registered.
(i) During investigation, statement of victim Mohd. Yasir Ahmed was got recorded under Section 164 Cr. P.C wherein he alleged that when he was performing Namaaz on the roof of Masjid, accused came there and asked him to accompany him on the pretext that he would give a kite to him but he refused. But accused closed his mouth and forcibly took him and thereafter accused took him at Ghata Masjid and from there he took him in a park. Again, in the night he brought the victim at Ghata Masjid and gave some tablets. It was alleged thereafter, accused took him to the house of his Khalla, where tea had fallen upon him. Thereafter, accused took him at Meena Bazar from where he had taken a frock for him, thereafter, he took him to Hapur in a bus and from Hapur, he brought him to Delhi and they got down behind the Red Fort. It was alleged that accused had talked with his mother and informed his mother that his (victim's) condition was worsening, consequently, his mother told the accused not to take the victim to the SC No. 07/13 Page 2 of 12 State Vs. Rihan hospital and asked him to leave him from where accused had brought the victim. Thereafter, accused took him to Pathodi House and went away after leaving him there. It was alleged that thereafter his family members came there and they took him to the house. From there, they took him to the hospital.
2 During investigation, police arrested the accused and after completing investigation challan was filed against the accused for the offences punishable under Section 363/365/368/328 IPC.
3. After complying with the provisions of Section 207 Cr. P.C, case was committed to the Court of Sessions on July 30, 2010. Thereafter, the case was assigned to the Court of Ms. S. S. Maan, the then learned Additional District & Sessions Judge.
4. Vide order dated February 21, 2012 and March 16, 2012, a charge for the offence punishable under Section 365/328 IPC was framed against the accused to which accused pleaded not guilty and claimed trial.
5. Vide order dated January 10, 2013 this case was assigned to this Court by the then learned District & Sessions Judge, accordingly case was registered as SC No. 07/13.
6. In order to bring home the guilt of accused, prosecution has examined as many as following 18 witnesses:-
PW1 HC Krishan Pal Singh, duty officer, proved the FIR PW2 Mohd. Arif, father of the victim SC No. 07/13 Page 3 of 12 State Vs. Rihan PW3 Dr. Ankur Singh, proved the MLC of victim PW4 Dr. R. N. Mandal, proved the medical record of victim PW5 Dr. Kanika, proved the medical record of victim PW6 Mohd. Gyas Ahmed, complainant PW7 ASI Shishpal Singh, PCR official, formal witness PW8 Sh. Sunil Kumar, proved the birth certificate of the victim PW9 Firoz, formal witness PW10 Shamina, material witness but turned hostile PW11 Ashim, formal witness PW12 Mohd. Yasir, victim PW13 HC Rakesh, formal witness PW14 Const. Rakesh, formal witness PW15 Const. Umesh, formal witness PW16 Dr. Chaman Parkash, proved the MLC of victim PW17 HC Tara Chand, MHC(M) PW18 SI Khalid Akhtar, investigating officer
7. On culmination of prosecution evidence, accused was examined under Section 313 Cr. P.C. wherein he denied all the incriminating evidence led by prosecution except that victim was between the age of 7-8 years old and submitted that accused was used to play with Mohd. Yasir earlier also but his parents had made a complaint to the father of accused that accused used to play with him (victim) as they did not like the accused. It was submitted that thereafter, they had falsely implicated the accused in this case. He further stated that police had tortured him in the lock-up by forcing him to eat cucumber due to which he started SC No. 07/13 Page 4 of 12 State Vs. Rihan vomiting. In order to prove his innocence, accused had examined following five witnesses in his defence:-
DW1 Dr. Vijender Nath Jha
DW2 Shahid
PW3 Mohd. Zahid
PW4 Sikander Mirza Changezi
PW5 Dr. Johar Qazi
8. Learned counsel appearing for the accused sagaciously contended that there is no scintilla of admissible evidence on record to prove guilt of the accused for the offence punishable under Section 328 IPC. It was submitted that FSL report does not support the prosecution case that any stupefying substance was administered to the victim. It was further contended that even victim in his testimony nowhere deposed that he had lost his consciousness due to the alleged stupefying substance. Even in his statement under Section 164 Cr. P.C he did not state so. On the contrary, from his statement, it appears that victim remained in his full senses throughout the alleged incident Thus, it was contended that prosecution has miserably failed to bring home the guilt of accused for the offence punishable under Section 328 IPC.
(i) Learned counsel appearing for the accused further astutely contended that there is no admissible evidence on record to bring home the guilt of accused for the offence punishable under Section 365 IPC as the ingredient of intention to cause that victim be secretly and wrongfully confined is missing. It was submitted that victim only deposed that accused had taken away him on the pretext of giving a kite and at the most the testimony of victim attracts the provisions of Section 363 IPC. Learned SC No. 07/13 Page 5 of 12 State Vs. Rihan defence counsel fairly concedes that the testimony of victim is sufficient to prove the guilt of accused for the offence punishable under Section 363 IPC.
9. Learned Additional Public Prosecutor also fairly conceded that there is no medical evidence on record to prove the allegation that any poisonous or stupefying substance was administered to the victim. The only evidence available on record is that when victim was recovered, he was not found in his full senses. Learned Addl. P. P. also fairly conceded that victim in his testimony nowhere deposed that accused had made any attempt to confine him secretly anywhere. As per his testimony accused used to roam with the victim from one place to another.
10. I have heard rival submissions made by counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions. It is pertinent to state that counsel for both the parties did not cite any case law in support of their contentions.
11. To prove the guilt of accused for the offence punishable under Section 365 IPC, prosecution has to establish following facts beyond reasonable doubts:-
- that accused had kidnapped the victim;
- that accused had an intention to cause that victim be secretly
- and wrongfully confined.
12. Kidnapping is defined under Section 361 IPC. Thus, prosecution is also bound to fulfil the ingredients of Section 361 IPC to SC No. 07/13 Page 6 of 12 State Vs. Rihan prove the guilt of accused. Though prosecution has examined as many as 18 witnesses, yet to bring home the guilt of accused for the offence punishable under Section 365 IPC, testimony of PW12 is relevant. Deposition of other witnesses are not relevant to prove the offence of kidnapping.
13. PW12 in his examination-in-chief deposed that on the day of incident, he had gone to Bardari Masjid to perform the Juma Namaaz. At that time time, accused came there and he offered to buy a kite for him and on the said pretext, accused took him to Ghata Masjid but accused did not give any kite to him. He further deposed that thereafter, accused took him in a nearby park. Though, victim asked the accused to permit him to make a call to his elder brother but accused did not allow. Though he also made a complaint to a lady but accused told the said lady that victim stated so to insult his uncle i.e. him. This shows that accused himself represented as the uncle of victim before the said lady. Thereafter, accused took him to Ghata Masjid. PW12 further testified that accused also took him to the house of Shamina from where he took him to Meena Bazar and had bought a frock for him and got him to wear the same. Thereafter, accused took him to Hapur in a bus but brought him Delhi on the next day. He had given a bath to him behind the Red Fort near public toilet. Accused had also given cap. Thereafter, accused left him near the shop of PW9 Firoz. Accordingly, PW9 gave him a water bottle, then victim gave mobile number of his brother. Thus, it becomes clear in his entire testimony, PW12 did not depose that accused had ever tried or made an attempt to wrongfully confined him secretly. On the contrary, from his deposition, it is proved that accused moved from one place to another continuously. He even used public transport to go to Hapur and to come back. In these circumstances, it is seldom to hold that accused had any intention to cause the victim to be SC No. 07/13 Page 7 of 12 State Vs. Rihan secretly and wrongfully confined. During trial, prosecution failed to adduce any other evidence to bring home the guilt of accused for the offence punishable under Section 365 IPC. However, the testimony of PW12 is sufficient to prove the guilt of accused for the offence punishable under Section 363 IPC.
14. Now coming to the contentions relating to the offence punishable under Section 328 IPC.
15. In order to bring home the guilt of accused for the offence punishable under Section 328 IPC, prosecution has to establish that accused had administered any poisonous or stupefying substance or intoxicating or unwholesome drug; with an intention to cause hurt to the victim or with an intention to commit or to facilitate the commission of an offence or knowing that his act was likely to cause hurt to the victim.
16. To prove the guilt of accused for the offence punishable under Section 328 IPC, prosecution has relied upon the testimony of PW2, PW6 and PW12.
17. From the testimony of PW2 and PW6, it appears that when victim was traced, he was not fully conscious. PW12 in his examination-in- chief deposed that at Choti Masjid accused had given some intoxicant tablets. Admittedly, victim was just 8 years old at the time of incident. Despite that accused had deposed that he was given some intoxicant tablets. It is pertinent to state that victim did not state that after consuming tablets, he became semi unconscious or lost his senses; rather he deposed that accused had given intoxicant tablets. This shows that there is every possibility that accused was tutored by someone, otherwise it is not SC No. 07/13 Page 8 of 12 State Vs. Rihan possible for such a tot to recognise the tablets. Moreover, during investigation police had made no effort to trace out the shopkeeper from whom accused had purchased the tablets. Further, from the testimony of PW12, it is abundantly clear that he had never lost his senses or consciousness at any point of time. On the contrary, from his testimony it is clear that he remained in his senses and due to that reason, he narrated each and every fact and the places where he was taken by the accused. This also falsifies the prosecution version that accused had administered any poisonous/stupefying substance or unwholesome drug. It is admitted case of prosecution that after the recovery victim was taken to the hospital and it is also admitted fact that his blood sample was taken and sent to the FSL for examination to ascertain whether there was any residue of poisonous substance. But the FSL report is in negative, thus there is no scientific evidence on record to corroborate the allegation that accused had given any poisonous, stupefying substance or unwholesome drug. Thus, there is no admissible evidence on record even to prove the guilt of accused for the offence punishable under Section 328 IPC.
18. Pondering over the ongoing discussion, I am of the considered opinion that prosecution has failed to bring home the guilt of accused beyond the shadow of all reasonable doubts for the offence punishable under Section 365/328 IPC, thus I hereby acquit the accused for the same. However, prosecution has succeeded to prove the guilt of accused for the offence punishable under Section 363 IPC, thus, I hereby hold the accused Rihan guilty thereunder.
Announced in the open Court on this 30th day of August, 2014 (PAWAN KUMAR JAIN) ADDITIONAL SESSIONS JUDGE-01 CENTRAL/THC, DELHI/sv SC No. 07/13 Page 9 of 12 State Vs. Rihan IN THE COURT OF SH. PAWAN KUMAR JAIN ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI SC No : 07/2013 ID No. : 02401R0250232010 FIR No. : 36/2010 Police Station : Chandni Mahal Under Section : 363/365/368/328 IPC State Versus RIHAN S/o Safir Ahmad R/o 1186, Kalan Mahal, Chandni Mahal, Delhi .........Convict Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the State.
Sh. Azizul Rehman, Advocate, counsel for the convict ORDER ON THE POINT OF SENTENCE(ORAL):
1. Vide separate judgment dated August 30, 2014 accused Rihan has been held guilty for the offence punishable under Section 363 of Indian Panel Code (in short IPC).SC No. 07/13 Page 10 of 12
State Vs. Rihan
2. Learned counsel appearing for the convict requests for a lenient view on the ground that though convict is a person of about 32 years but his mind has not been developed to a mature person. It is further submitted that though convict is on bail in this case, but infact he is in custody since October 21, 2011 as unfortunately due to ill advice on the part of previous counsel, no application was moved for cancellation of bail in this case. It is thus requested that convict be considered in custody in this matter and the benefit of his custody period from October 21, 2011 be given to the convict to set off the sentence under Section 428 Cr.P.C.
3. Learned Additional Public Prosecutor for the State submits that since accused has been held guilty for the offence punishable under Section 363 IPC, he is liable for the sentence as provided under the Penal Code but State has no objection, if convict be considered in custody since October 21, 2011 as it is undisputed fact that he remained in jail since then continuously and no attempt was made on behalf of convict to get his bail cancelled and State has no reason to disbelieve the defence version that same might have not been done due to improper legal advise.
4. I have heard rival submissions advanced by counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions.
5. Considering the submissions of counsel for both the parties and facts and circumstances of the case, I am of the opinion that ends of justice will be met, if convict be sentenced for the period of two years rigorous imprisonment and burdened with some fine, thus, I hereby sentence the convict Rihan rigorous imprisonment for a period of two years and a fine of ` 2000/- in default simple imprisonment for 15 days SC No. 07/13 Page 11 of 12 State Vs. Rihan for the offence punishable under Section 363 IPC. Benefit of Section 428 Cr. P. C, if any, be given to the convict. It is made clear that convict be considered in custody in this matter since October 21, 2011 to till date.
6. Copy of judgment along with order on the point of sentence be given to the convict free of cost.
7. File be consigned to record room.
Announced in the open Court on this 30th day of August, 2014 (PAWAN KUMAR JAIN) ADDITIONAL SESSIONS JUDGE-01 CENTRAL/THC, DELHI/sv SC No. 07/13 Page 12 of 12