Delhi District Court
Fir No. 781/13 State vs . Sachin 1/18 on 1 February, 2022
IN THE COURT OF SH. DEVENDER KUMAR, ADDITIONAL SESSIONS
JUDGE-02(NE), KARKARDOOMA COURTS, DELHI
CNR No. DLNE01-000416-2014
SC No. 44907/15
FIR No. 781/13
PS: Khajuri Khas
U/s 363/363A/368/370/34 IPC
State
Versus
Sachin
S/o Sh. Kesho Ram
R/o Bharat agar Chandmari,
Near Sulabh Sauchalaya,
Ghaziabad, UP
Date of Institution / Committal : 02.06.2014
Date of Arguments : 01.02.2022
Date of Pronouncement : 01.02.2022
JUDGMENT:
1. Prosecution case: It is the case of the prosecution that on 25/12/2013, Complainant Smt. Rakhi visited PS and lodged a DD entry regarding missing of her niece namely M, aged 13 years and nephew G, aged about 2 years residing with her FIR No. 781/13 State vs. Sachin 1/18 for the last 4 months and were missing since 24.12.2013. On the basis of this complaint/DD, FIR u/s 363 IPC was lodged. On 17/02/2014, complainant Smt. Rakhi again visited PS and informed that both the kids could be found by searching in the area of Ghaziabad Railway Station, UP. IO constituted a raiding team and conducted search in the jhuggi area near Railway Station, Ghaziabad, UP and recovered a minor namely G from a jhuggi of one Kesho Ram. Minor was recovered from the possession of accused Sachin and one CCL and they had hidden him under blanket and behind a cot. Both the accused were apprehended and later on, at the instance of accused Sachin, another minor M was also recovered from Railway Station, Shahdara, Delhi. Accused Sachin charge-sheeted u/s 363/363A/368/370/34 IPC, whereas minor charge- sheeted separately before JJB concerned. However, jhuggi owner Kesho Ram could not be arrested and charge sheeted.
2. This charge-sheet committed to this court after compliance of Section 207 Cr.P.C.
3. Charge u/s 368/34 IPC was framed against accused vide order dated 08.07.2015 and he pleaded not guilty and claimed trial.
4. To prove the charges, prosecution has examined PW1 Smt. Rakhi, PW2 SI Ajay Tomar, PW3 ASI Kanwar Singh, PW4 ASI Jagbir Singh, PW5 Ct. Sachin, PW6 Dr. Yogesh Kumar, PW7HC Maan Singh, PW8 SI Mukesh Chauhan, PW9 Dr. Khagen Ramchiary, PW10 SI Naveen Rathi and PW11 Sh. Sunil Gupta, Ld.MM and closed PE.
5. After PE, entire incriminating evidence explained to accused under Section 313 Cr.P.C and his statement was recorded. Accused has not led any defense evidence and closed DE.
FIR No. 781/13 State vs. Sachin 2/18
6. To prove the case, prosecution has examined many witnesses including complainant. The evidence led by the prosecution is as under: -
6.1. PW1 Rakhi has deposed that two minor children of her cousin Usha, namely girl M, aged about 12-13 years and son namely G, aged about 2-2½ years were residing with her at House No.290, Gali No.6, Sonia Vihar, Delhi, as her sister was not mentally unfit. It is further deposed that on 24.12.2013 at 12.00 Noon, both above named children got missing and she came to know about it when came back to home from her job place at Gandhi Nagar. She searched them at her own level, but could not succeed and on 25.12.2013, she lodged a missing DD No. 29B, which is Ex. PW1/A. It is further deposed that a FIR was lodged on the basis of above aid DD, which is Ex.
PW1/B. She kept on searching both children and on 17.02.2014, she came to know that her children were in the jhuggi of one Kesho Ram at Bhoor Bharat, Vijay Nagar, Ghaziabad, UP and she also witnessed girl M there, but was not allowed to enter in jhuggi by Kesho Ram who also misbehaved with her and did not allow to meet girl. It is further deposed that she informed police and IO constituted a police team and conducted search in jhuggis and found that two boys were trying to conceal something behind a cot in a blanket. Their names were revealed as Sachin and CCL R and they tried to run away but were apprehended by police. Police search blanket and found her nephew G under blanket who was wearing one tabiz, one cloth bag around his neck and a pearl garland. Both the accused disclosed that cloth bag was being used for begging. Accused Sachin was arrested vide arrest memo Ex. PW1/C and his personal search was conducted vide personal search memo Ex. PW1/D. He made his disclosure statement Ex. PW1/E. Minor G was taken into custody vide recovery memo Ex. PW1/F and cloth bag, tabiz and mala were seized vide seizure memo Ex.PW1/G. Minor was medically examined in Jag Parvesh Chand Hospital and his custody was handed vide handing over memo Ex. PW1/H. After 3-4 days, her minor niece namely M was also recovered and both children were handed over to their mother Puja @ FIR No. 781/13 State vs. Sachin 3/18 Usha. She has identified the articles as Ex. P1 and Ex. P2.
6.1.1 During cross examination, she has deposed that her cousin Usha was not residing with her and even her whereabouts were also not known at the time of this incident, but father of minors had already expired. It is further deposed that both children came to her about 2-3 years prior to this incident as their mother was not traceable and she used to take care of both. She used to work as Saleswoman in a shop and minor girl M used to take care of herself, brother G and her 6 years old son. It is further deposed that she informed police about missing of both children in evening, but police did not take her for search of children after lodging complaint. It is denied that she got children back herself or that children were medically examined, but it is admitted that child G was handed over to her by the police on the same day of recovery, whereas girl was kept in Children Home. She was not aware as to whether her sister used to beg or that her sister also used to ask children for begging. She has not supported the prosecution and has admitted that police did not recover both children in her presence and even accused was not arrested in her presence. She has further deposed that she deposed before the court as per the statement recorded by the police.
6.1.2. Ld. Addl. PP for State has reexamined this witness and during cross examination, she has admitted that she has deposed before this court whatsoever narrated by the police in her statement and even minor G was also not recovered in her presence. Again said, she did not see face of anyone as it was darkness, but she was present at the time of recovery of minor G, however she was accompanied with police to Ghaziabad but was standing at some distance when minor was recovered.
6.2. PW2 SI Ajay Tomar joined investigation on 17.02.2014 and was part of police team went to Bhoor Bharat Nagar, Vijay Nagar, Ghaziabad and witnessed the recovery FIR No. 781/13 State vs. Sachin 4/18 of child G from jhuggi of Kesho Ram. He also witnessed that two boys were trying to hide something under a blanket and started running to see police party but were apprehended. On checking, minor child aged about 2 years was recovered from the blanket and one tabiz, mala and cloth bag were also recovered. Complainant Rakhi identified minor and both accused arrested and articles were also seized vide seizure memos Ex.PW1/G and arrest papers are Ex.PW1/C and Ex.PW1/D. Statement of accused Ex.PW1/E was recorded, but other accused was juvenile. He has identified the case property as Ex. P1 and Ex. P2.
6.2.1. During cross examination, he has admitted that he did not make his departure entry, but they went to Bhoor Bharat Nagar, Vijay Nagar by a private car. IO did not seize cot and even no other person was present except two boys who were arrested by them. The articles worn by minor were seized and sealed by IO and all the documents were prepared at the spot itself while sitting on chair in jhuggi. They left the spot at about 12.00 midnight and reached at PS at about 2.00 pm. It is admitted that blanket, mala, tabiz and cloth bag are easily available in market, but it is denied that all have been planted upon accused or nothing was recovered.
6.3. PW3 ASI Kanwar Singh also joined investigation of this case on 21.02.2014 and witnessed the disclosure statement of accused Sachin Ex.PW3/A, on which, basis he led police to Shahdara Railway Station and got recovered minor girl namely M, who was sitting on a bench at Platform No. 1. She was recovered vide recovery memo Ex. PW3/B. IO recorded statement of minor girl. During cross examination, he has admitted that police team left PS at about 9.00 pm and reached at Railway Station Shahdara between 9.45 pm to 10.00 pm, but no public person was present there and minor M was found sitting on a bench alone. It is denied that minor M was begging when they reached at Shahdara Railway Station.
FIR No. 781/13 State vs. Sachin 5/18 6.4. PW4 ASI Jagbir Singh was posted as DO with concerned PS. On 25/12/2013, he lodged FIR Ex.PW1/B on the basis of DD No.29A which is Ex.PW1/A. 6.5. PW5 Ct. Sachin also joined investigation with IO on 17.02.2018 and has corroborated the recovery of child G along with articles in the presence of complainant which were seized vide seizure memo Ex.PW1/G and witnessed the arrest of accused Sachin vide arrest papers vide Ex. PW1/C to Ex. PW1/E. 6.6. PW6 Dr. Yogesh Kumar has proved the MLC of Minor Child G as Ex.PW6/A. 6.7. PW7 HC Maan Singh was posted as MHC(M) with concerned PS. On 17/02/2014, he received two sealed parcels deposited by IO SI Naveen Rathi vide entry in Register No. 19 which is Ex.PW7/A. 6.8. PW8 SI Mukesh Chauhan has proved that on 25/12/2013, he flashed wireless massage regarding missing of children on assigning investigation of this case and thereafter, he transferred.
6.9. PW9 Dr. Khagen Ramchiary has proved MLC of minor girl M as Ex.PW9/A. As per MLC, aunt of girl refused for her internal examination.
6.10. PW10 SI Naveen Rathi was IO and was assigned investigation of this case on 17.02.2013. He constituted a team of SI Ajay Tomar, Ct. Sachin and Ct. Ganga Ram and also joined complainant and made search for children. He received information through informer that children could be at Bhoor Bharat Nagar, Ghaziabad, UP near Railway Station, Ghaziabad. They searched jhuggi of one Kesho Ram and found accused Sachin and CCL R who were trying to conceal something behind a cot under blanket. On the identification of complainant, they recovered victim G who was FIR No. 781/13 State vs. Sachin 6/18 wearing a tabiz, pearl garland and one small bag around his neck. Accused Sachin was arrested. Minor was handed over to complainant. On the next day, both accused produced before court and 4 days police custody of Sachin obtained, during which, Sachin led police party to various spots, but useless. On 21.02.2014, statement of complainant Rakhi was recorded under section 164 Cr.PC which is Mark A and in evening, accused Sachin made supplementary disclosure statement Ex.PW3/A and led to Railway Station, Shahdara and pointed out towards a girl child M sitting at Platform No. 1 and was recovered vide recovery memo Ex. PW3/B. On 24.02.2014, statement of girl M was recorded through Ld. MM which is Mark B and thereafter, custody was handed over to mother vide handing over memo Ex. PW1/H. 6.10.1. During cross examination, he has deposed that he received case file on 17.02.2014 at 7.30 pm and left PS at about 8.15 pm to recover children and reached at Ghaziabad Railway Station at about 9.15 pm. He received secret information at about 9.30 pm and reached Bhoor Bharat Nagar, Vijay Nagar, Ghaziabad at about 9.40 pm and searched many jhuggis in narrow lanes and recovered child G from there. He could not tell date and time when accused Sachin led police team to Ghaziabad, Santosh Medical College, Railway Tracks.
6.11. PW11 Sh. Sunil Gupta, Ld. MM has proved the statement of complainant Rakhi as Ex. PW11/A which was recorded on the basis of application Ex.PW11/A. He supplied copy of statement against application Ex. PW11/C. He again recorded statement of girl M u/s 164 CrPC recorded on the basis of application Ex.PW11/B and supplied copy of statement against application Ex. PW11/F.
7. I have heard the arguments and perused the record. Accused has been charged u/s 368/34 IPC for concealing and illegal confinement of kidnapped children, who were nephew and niece of complainant Smt. Rakhi. Though this section is triable by FIR No. 781/13 State vs. Sachin 7/18 the Court by which kidnapping or abduction is triable, yet the order on charge dated 08.07.2015 has proved that this section 368 IPC has been invoked on the basis of section 363A IPC of which 2nd part is triable by Court of Session. Prosecution has examined a number of witnesses to prove this charge u/s 368 IPC. However, before deciding charge against accused, it is necessary to see Section 368 of IPC which is as under:
368. Wrongfully concealing or keeping in confinement, kidnapped or abducted person.--Whoever, knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person, shall be punished in the same manner as if he had kidnapped or abducted such person with the same intention or knowledge, or for the same purpose as that with or for which he conceals or detains such person in confinement.
8. The above said section has been defined in case titled Saroj Kumari v. State of U.P., (1973) 3 SCC 669 and ingredients of this section are as under:
10. To constitute an offence under Section 368, it is necessary that the prosecution must establish the following ingredients:
(1) The person in question has been kidnapped.
(2) The accused knew that the said person had been kidnapped. (3) The accused having such knowledge, wrongfully conceals or confines the person concerned.
9. In fact, it is necessary to establish intention and knowledge of accused that person confined by him/her was kidnapped or abducted and was detained, concealed or confined deliberately to conceal. As such, kidnapping of a confined child or person is necessary to prove the offence of accused. Kidnapping has been defined under section 361 IPC which is punishable u/s 363 IPC and both sections are as under:
361. Kidnapping from lawful guardianship. --Whoever takes or entices any minor 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 minor or person of unsound mind, without the FIR No. 781/13 State vs. Sachin 8/18 consent of such guardian, is said to kidnap 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 believes himself to be entitled to lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.
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.
10. The above said section has been defined in case titled Thakorlal D. Vadgama v. State of Gujarat [(1973) 2 SCC 413 as follows:
"The expression used in Section 361 IPC is 'whoever takes or entices any minor'. The word 'takes' does not necessarily connote taking by force and it is not confined only to use of force, actual or constructive. This word merely means, 'to cause to go', 'to escort' or 'to get into possession'. No doubt it does mean physical taking, but not necessarily by use of force or fraud. The word 'entice' seems to involve the idea of inducement or allurement by giving rise to hope or desire in the other. This can take many forms, difficult to visualise and describe exhaustively; some of them may be quite subtle, depending for their success on the mental state of the person at the time when the inducement is intended to operate. This may work immediately or it may create continuous and gradual but imperceptible impression culminating after some time, in achieving its ultimate purposes of successful inducement. The two words 'takes' and 'entices', as used in Section 361 IPC are in our opinion, intended to be read together so that each takes to some extent its colour and content from the other. The statutory language suggests that if the minor leaves her parental home completely uninfluenced by any promise, offer or inducement emanating from the guilty party, then the latter cannot be considered to have committed the offence as defined in Section 361 IPC."
In view of definition of kidnapping, it is mandatory that a minor must be taken away or enticed by someone without the consent of guardian and only then anyone may be FIR No. 781/13 State vs. Sachin 9/18 convicted for such kidnapping u/s 363 IPC. And, if such kidnapped or enticed minor is concealed or confined by someone despite knowing to be kidnapped or enticed, then that person shall be liable u/s 368 of IPC.
11. Similarly, section 368 IPC is also attracted for contravention of section 363A of IPC. Section 363A is also pertaining to kidnapping, but including maiming of minor for begging purpose also and confinement of such minor who was kidnapped or maimed for such is also punishable u/s 368 of IPC. Section 363A of IPC is as under:
363A. Kidnapping or maiming a minor for purposes of begging. --
(1) Whoever kidnaps any minor or, not being the lawful guardian of a minor, obtains the custody of the minor, in order that such minor may be employed or used for the purpose of begging shall be punishable with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
(2) Whoever maims any minor in order that such minor may be employed or used for the purposes of begging shall be punishable with imprisonment for life, and shall also be liable to fine.
(3) Where any person, not being the lawful guardian of a minor, employs or uses such minor for the purposes of begging, it shall be presumed, unless the contrary is proved, that he kidnapped or otherwise obtained the custody of that minor in order that the minor might be employed or used for the purposes of begging.
(4) In this section,--
(a) 'begging' means--
(i) soliciting or receiving alms in a public place, whether under the pretence of singing, dancing, fortune-telling, performing tricks or selling articles or otherwise;
(ii)entering on any private premises for the purpose of soliciting or receiving alms;
(iii) exposing or exhibiting, with the object of obtaining or extorting alms, any sore, wound, injury, deformity or disease, whether of himself or of any other person or of an animal;
FIR No. 781/13 State vs. Sachin 10/18
(iv) using a minor as an exhibit for the purpose of soliciting or receiving alms;
(b) 'minor' means--
(i) in the case of a male, a person under sixteen years of age; and
(ii) in the case of a female, a person under eighteen years of age.]
12. Abovesaid section made it clear that any kidnapping or maiming of any minor or obtaining his / her custody for the purpose of employment or use for begging is punishable offence u/s 363A. However, for attracting section 368 IPC, it has to be proved that kidnapping or maiming of minor was for the purpose of begging and the person being prosecuted was aware about this fact, but still concealed or confined that minor. Section 363A IPC is complete and has not only provided definition of 'minor' for the purpose of this offence but has also defined 'begging' besides prescribing a presumption against accused for committing such offence. This presumption under Sub section (3) is attracted, if any person employs or uses minor for the purpose of begging, not being the lawful guardian of a minor, shall be considered to have kidnapped or otherwise obtained custody of minor for the purpose of begging and accused has to rebut this presumption. However, to raise this presumption, some facts must be established beyond doubt. First of all, it has to be established that child was kidnapped or employed or used for the purpose of begging as defined by this section, only than such presumption may be raised.
13. In the present case, accused Sachin has been charged u/s 368 of IPC and to prove this charge prosecution is duty bound to prove that accused deliberately and knowingly confined or concealed the minor children, who were niece and nephew of complainant. PW1 Smt. Rakhi has deposed that both minor children used to reside with her and on 24/12/2013, they got missing and she lodged a missing DD entry which led to lodging of this FIR. However, testimony of PW1 has proved that she did not witness this kidnapping of both minor by accused or anyone else. In fact, FIR No. 781/13 State vs. Sachin 11/18 testimony of both minors was material to prove their kidnapping or abduction by someone or accused or transfer of their custody to accused including mode and manner of such kidnapping, but they have not been examined. No doubt minor G was just aged about 2 years and was too young to depose, but minor M was aged about 13 years and could have proved mode and manner of their kidnapping or abduction. However, prosecution has failed to examine her despite getting recorded her statement u/s 164 CrPC. Summons were issued to her multiple times but could not be served upon her and she could not be examined. In the absence of examination of any kidnapped child or other eye witness, kidnapping or abduction of both victims could not be proved.
Not only kidnapping or abduction of both children, but knowledge of accused that both children were kidnapped and confined them despite knowing was also necessary to be proved to attract this section 368 IPC. However, in this case, there is no evidence on record that accused was aware about such kidnapping or abduction of child G and confined him despite knowledge. PW1 Rakhi is the main witness who has been examined by prosecution to prove all material facts and has deposed that she came to know that both children were in the jhuggi area of Railway Station, Ghaziabad and visited jhuggi of one Kesho Ram who confined her children and used them for begging. However, she has denied her previous testimony during examination in chief thereby deposing that she has deposed on the line of police statement and her testimony was based upon it. This testimony of PW1 has created a doubt about genuineness of her testimony. On the other hand, prosecution has not examined any witness to prove that Kesho Ram ever kidnapped both children and no one saw children in his company or under his possession. Even Kesho Ram has not been charge sheeted in this case, due to it cannot be said that both children were kidnapped or abducted by Kesho Ram and confined in her jhuggi, whereas there is no evidence that accused Sachin kidnapped them. As such, statement of PW1 could not FIR No. 781/13 State vs. Sachin 12/18 prove that accused Sachin deliberately confined kidnapped or abducted minor children who recovered out of his possession or at his instance.
14. Ld. Addl. APP for the State has submitted that the statement of minor M and PW1 Rakhi were also recorded u/s 164 CrPC and these statements may be utilized against accused to prove his involvement. It is further argued that PW11/ Ld. MM has proved statements of both witnesses as Ex. PW11/A and Ex.PW11/B and statement of minor M Ex.PW11/B has duly proved that she was kidnapped by accused and was confined against her wishes despite knowing to be kidnapped and was also compelled to beg and this testimony has duly proved the knowledge as well involvement of this accused.
15. To deal with this argument of Ld. Addl. APP for State, it has to be seen as to whether statement of a witness could be relied upon, if he / she has not proved it. The law to deal with such statement has laid down in case titled Somasundaram v. State, (2020) 7 SCC 722 as under: -
81. Section 164 CrPC enables the recording of the statement or confession before the Magistrate. Is such statement substantive evidence? What is the purpose of recording the statement or confession under Section 164? What would be the position if the person giving the statement resiles from the same completely when he is examined as a witness? These questions are not res integra. Ordinarily, the prosecution which is conducted through the State and the police machinery would have custody of the person. Though, Section 164 does provide for safeguards to ensure that the statement or a confession is a voluntary affair it may turn out to be otherwise. We may advert to statements of law enunciated by this Court over time.
82. As to the importance of the evidence of the statement recorded under Section 164 and as to whether it constitutes substantial evidence, we may FIR No. 781/13 State vs. Sachin 13/18 only advert to the following judgment i.e. in George v. State of Kerala [George v. State of Kerala, (1998) 4 SCC 605 : 1998 SCC (Cri) 1232 : AIR 1998 SC 1376] : (SCC p. 624, para 36) "36. ... In making the above and similar comments the trial court again ignored a fundamental rule of criminal jurisprudence that a statement of a witness recorded under Section 164 CrPC, cannot be used as substantive evidence and can be used only for the purpose of contradicting or corroborating him."
83. What is the object of recording the statement, ordinarily of witnesses under Section 164 has been expounded by this Court in R. Shaj v. State of Kerala [R. Shaji v. State of Kerala, (2013) 14 SCC 266 : (2014) 4 SCC (Cri) 185] : (SCC p. 279, paras 27-28) "27. So far as the statement of witnesses recorded under Section 164 is concerned, the object is twofold; in the first place, to deter the witness from changing his stand by denying the contents of his previously recorded statement, and secondly, to tide over immunity from prosecution by the witness under Section 164. A proposition to the effect that if a statement of a witness is recorded under Section 164, his evidence in court should be discarded, is not at all warranted. (Vide Jogendra Nahak v. State of Orissa [Jogendra Nahak v. State of Orissa, (2000) 1 SCC 272 : 2000 SCC (Cri) 210] and CCE v. Duncan Agro Industries Ltd. [CCE v. Duncan Agro Industries Ltd., (2000) 7 SCC 53 : 2000 SCC (Cri) 1275] )
28. Section 157 of the Evidence Act makes it clear that a statement recorded under Section 164 CrPC, can be relied upon for the purpose of corroborating statements made by witnesses in the committal court or even to contradict the same. As the defence had no opportunity to cross-examine the witnesses whose statements are recorded under Section 164 CrPC, such statements cannot be treated as substantive evidence."
16. In view of the above said law, it stands proved that statement of a witness u/s 164 CrPC is nothing but similar to a statement 161 CrPC or a FIR u/s 157 CrPC, however it is slight on higher pedestal being recorded by Ld. MM. But it cannot be FIR No. 781/13 State vs. Sachin 14/18 solely used against accused to convict him / her until and unless proved by its maker before the court. It can be only used to contradict a witness in terms of section 145 of Evidence Act. In the present case, statement of PW1 has not been put to her despite her examination before this court. Even her attention was also not drawn during her examination in chief, cross examination or re-examination by Ld. APP, whereas minor girl M has not been examined at all. In fact, statement Ex.PW11/B cannot be used against accused for the want of cross examination. PW11/Ld. MM was not an eye witness to this incident and was not aware about actual facts, due to he may not prove contents of both statements and such statements cannot be made basis of conviction of accused in this case. As such, argument of Ld. APP for State has no substance.
17. Ld. Addl. APP for State has further argued that PW1 initially supported the case of prosecution during examination-in-chief, whereas she has changed her statement during cross examination which suggests that she was win over by accused or deposed under threat or pressure. It is further argued that the then Presiding Officer also recorded/ noted her demeaner which has fortified this submission, due to her testimony during cross examination is liable to be discarded. On the other hand, Ld. Counsel for accused has submitted that statement of PW1 during cross examination was made voluntarily and accused is entitled for benefit of such contradictions as emerged during cross examination.
18. No doubt sudden change in statement of a witness during cross examination creates a doubt that such statement might have changed due to threat or pressure of accused and in such case testimony of examination in chief may be relied upon, provided it is sufficient to convict the accused. In this case, I have already observed that it could not be proved that both minors were kidnapped or enticed by anyone in terms of section 361 and 363A of IPC. Again, it also could not be proved that both the children were kidnapped and were being used for begging purpose. Though PW1 FIR No. 781/13 State vs. Sachin 15/18 Rakhi and PW SI Ajay Tomar have proved that certain articles like one pearl garland, one tabiz and a cloth beg hanging around neck of minor G were seized vide seizure memos Ex. PW1/G, but on the basis of these articles, in the absence of any proof of begging, it cannot be concluded that both minors were being used or employed for the purpose of begging. Minor G was found in jhuggi with some strange articles, but absence of any evidence regarding begging, no presumption against accused can be raised that child was being used for begging purpose.
Similarly, minor M was allegedly recovered at the instance of Sachin in pursuance of his supplementary disclosure statement Ex.PW3/A, but seizure of minor girl is also not beyond doubt. Firstly, accused Sachin was taken into custody on 17/02/2014 and remained in custody till making of his supplementary statement on 21/02/2014, but it is beyond explanation as to how accused got this information regarding presence of minor at Railway Station Shahdara, Delhi, whereas he disclosed earlier that his father Kesho Ram had taken girl to Aligarh and Meerut to hide her from police. It is further beyond explanation as to how accused got this information especially during police custody to get her recovered. Contrary to it, statement of minor M u/s 161 CrPC has proved that Kesho Ram took her to Haridwar and thereafter left her at Railway Station, Shahdara. This recovery has been made in pursuance of disclosure statement of accused and may be admissible in terms of section 27 of Evidence Act, but seems not beyond doubt.
19. Ld. APP for State has emphasized that Section 27 of Evidence Act has made such information/recovery admissible which is leading to recovery or discovery of a new fact and recovery of minor M in pursuance of disclosure statement of accused cannot be brushed aside. Though I have already dealt with this argument herein above, but still law to this effect has dealt with in case titled Mohd. Arif Alias Ashfaq v. State (NCT of Delhi), (2011) 13 SCC 621 as under:
FIR No. 781/13 State vs. Sachin 16/18 "The essence of the proof of a discovery under section 27 of the Evidence Act is only that it should be credibly proved that the discovery made was relevant and material discovery which proceeded in pursuance of information supplied by the accused in the custody. How the prosecution proved it, is to be judged by the court but if the court finds the fact of such information having been given by the accused in custody is credible and acceptable even in the absence of the recorded statement in pursuance of that information some material discovery has been effected than the aspect of discovery will not suffer from any vice and can be acted upon."
In view of above said case law, it stands clear that only such recovery is admissible which is credible and acceptable. However, in this case, recovery of minor girl at the instance of accused is not admissible u/s 27 of Evidence Act being not beyond doubt. Though recovery of child G from the possession of both accused Sachin and CCL was credible, yet in the absence of proving his kidnapping or kidnapping for the purpose of begging by accused, it could not be proved that confinement of minor was for any illegal purpose. As such, it cannot be assumed that both children were kidnapped or abducted or were being used for the purpose of begging without any material evidence, especially when minor M also disclosed that her mother also used to beg.
20. So far as the hostile testimony of PW1 during cross examination viz-a-viz her demeaner recorded by the court is concerned, no doubt demeaner of this witness has suggested that she may be under fear or duress, but demeaner cannot be sole basis of reliance of testimony of a witness to convict. Even if her unrebutted testimony is considered, then also it has failed to prove the ingredients of offences u/s 363/363A or 368 IPC for his conviction.
21. Keeping in view of the fact and circumstances of the case, I am of the considered opinion that prosecution has failed to prove the charge u/s 368 IPC against accused Sachin, accordingly he is hereby acquitted. His Bail Bond cancelled and surety discharged.
FIR No. 781/13 State vs. Sachin 17/18
22. Bail Bond u/s 437 A CrPC has already been furnished on behalf of accused for 6 months and accused is directed to appear before the appellant court, in case of filing any appeal against this judgment, within the period of next 6 months.
23. File be consigned to Record Room after due compliance.
Announced in open court (Devender Kumar)
today on 01.02.2022 Additional Sessions Judge-02
(NE): Karkardooma Courts, Delhi
CERTIFICATE:-
It is certified that the arguments in the above said case file have been heard and judgment has also been pronounced through VC in the presence of accused, Ld. Counsels for accused and Ld. Addl. PP for State. Accused has explained the outcome of this case in vernacular and proceedings are correct.
(Devender Kumar)
Additional Sessions Judge-02
(NE): Karkardooma Courts, Delhi
01.02.2022
FIR No. 781/13 State vs. Sachin 18/18