Delhi District Court
State vs . Mukesh Mishra & Anr. on 18 December, 2018
1
IN THE COURT OF ANUBHAV JAIN, METROPOLITAN
MAGISTRATE, SOUTHEAST, SAKET COURTS, NEW DELHI.
FIR No. 700/05
PS OIA
U/s 363/34 IPC
State Vs. Mukesh Mishra & Anr.
JUDGMENT
A. SL. NO. OF THE CASE : 1222/2/10
B. DATE OF INSTITUTION : 22.11.2005
C. DATE OF OFFENCE : 05.08.2005
D. NAME OF THE : Shyamveer
COMPLAINANT S/o Sh. Khachedu
E. NAME OF THE ACCUSED : 1) Mukesh Mishra
S/o Sh. Vasuki Mishra
2) Upender
S/o Sh. Lakshmi Narayan
F. OFFENCE
COMPLAINED OF : U/s 363/34 IPC
G. PLEA OF ACCUSED : Pleaded not guilty
H. FINAL ORDER : Accused UpenderAcquitted
Accused MukeshConvicted
I. DATE OF FINAL ORDER : 18.12.2018
Brief Statement of Reasons for Decision :
1. Accused persons are produced before the court to stand trial for the offence punishable u/s 363/34 IPC.
22. In brief, facts of the case as per prosecution are that on 05.08.2005 DD No. 6 was received by HC Om Prakash upon which he alongwith Ct. Dinesh Tyagi reached at H. No. A2, Harkesh Nagar, New Delhi and met complainant Shyamveer who got his statement recorded. It is stated by the complainant that he is residing at the first floor of the abovesaid house and used to work of packing of Luxor Pen and that on the said date at about 7.30 am accused Mukesh who is employee of the complainant reached the shop. It is further stated that his grandson namely Kundan aged about one and a half year was playing at the shop only and at about 8.00 am he left his grandson at the shop and went inside the home and when he returned after 10 minutes he found that his grandson was missing from the shop. He further stated that he enquired from the people nearby upon which his sister Angoori informed him that accused Mukesh had took Kunal towards Harkesh Nagar Chowk.
Upon the said complaint of the complainant, FIR u/s 363 IPC was registered and IO prepared the site plan.
That thereafter on 05.08.2005 information was received from GRP/NDLS that accused Mukesh has been apprehended by GRP and that child Kunal was recovered from his possession and is handed over to legal heirs. Accused was produced before the court on 06.08.2005 upon which PC of accused was obtained and accused disclosed the name of coaccused Upender. Coaccused Upender was apprehended and upon completion of investigation charge sheet was filed by the IO against the accused persons u/s 363/34 IPC.
33. Accused appeared before the court and copy of charge sheet u/s 207 CrPC was supplied to them. Thereafter accused persons were charged u/s 363/34 IPC on 26.11.2010 by Ld. Predecessor Court to which they pleaded not guilty and claim trial.
4. Prosecution in order to prove its case has examined following witnesses :
4.1 PW1 Rohtash deposed that on 05.08.2005 at about 8.30 pm, he received a telephone call from his father that his worker namely Mukesh Mishra took away his son named Kunal age around 1 and ½ year without his permission. He further deposed that he made effort to search his son and during search he alongwith his worker Sanjay reached at platform no 4, New Delhi Railway station where he saw that said Mukesh Mishra was having his one and half year old son and in the meantime, police also reached the spot and apprehended accused Mukesh Mishra. He further deposed that his child was handed over to him by the police vide seizure memo Ex PW1/A. He further deposed that on 16.09.2005, IO came at his house and shared information that another accused namely Upendra would come at Sarai Kale Khan bus adda upon which he alongwith IO reached at Sarai Kale Khan Bus adda where accused Upender was seen by secret informer near the fly over.
He further deposed that on the instance of secret informer, IO apprehended Upendra and complainant also identified said Upendra as his tenant. He further deposed that he told the IO that said Upendra alongwith Mukesh Mishra kidnapped his child then IO arrested accused Upendra vide memo Ex PW1/B and conducted his personal search vide memo Ex PW1/C. He correctly identified the accused.
44.2 PW2 ASI Shiv Charan proved the FIR Ex. PW2/B. 4.3 PW3 ASI Naresh Kumar deposed that on 06.08.2005, he was posted as Ct. at PPOIA PhII, PSOIA, PhI and on that day he alongwith IO/ASI Pritam Singh went to Tis Hazari Court and met HC Bhoop Singh who had already arrested accused Mukesh Mishra . He further deposed that by the order of the court HC Bhoop Singh produced accused Mukesh Mishra in Patiala House Court and thereafter, accused Mukesh Mishra was produced in Patiala House Court where he was formally arrested by the IO vide arrest memo Ex.PW3/A. He further deposed that one day PC remand of the accused was obtained and disclosure statement of the accused was recorded vide Ex.PW3/B. He correctly identified the accused.
4.4 PW4 SI Bhoop Singh deposed that on 05.08.2005 he was posted as HC at PSNDLS and on that day his duty hours were 8.00 am to 8.00 pm. He further deposed that on that day his duty was at Platform No. 2 & 3 New Delhi Railway Station alongwith Ct. Ranvir Singh and at about 9.45 am through wireless he received a message from PSControl Room that a boy namely Kunal is kidnapped from Okhla by accused Mukesh and the said boy may be carried out to Bihar by the said accused by rail. He further deposed that on that day at about 12.05 pm a train namely EMUGhaziabad stopped at the platform no. 4 and at the same time he alongwith Ct. Ranvir reached at the North side of platform no. 3. He further deposed that he listen loud noise from the train namely EMUGhaziabad which was stopped at the platform no. 4 and saw that accused jumped from the train in the side of platform no. 3. He further deposed that they come under the suspension and reached at the spot 5 where accused has jumped and stopped the accused and he heard a voice from some person that he was the person who had kidnapped the boy namely Kunal. He further deposed that they took the accused to upper side of the platform and Sanjay took the boy and came to upper side of the platform. He further deposed that after coming upper side of the platform Sanjay told us that he was the father of kidnapped boy Kunal and thereafter accused told his name as Mukesh Mishra and he conducted cursory search of accused. He further deposed that thereafter he conducted medical examination of the accused and thereafter arrested and conducted personal search of the accused Ex. PW4/A and PW4/B. He further deposed that thereafter he handed over the boy to his father and said handing over memo is Ex. PW1/A and accused was taken to PSNDLS and put to the lockup. He further deposed that on the same day he informed at PSOIA at the evening that he arrested the accused in case FIR No. 700/05, PSOIA and he also informed that kidnapped boy handed over to his father. He further deposed that on the same day he prepared the kalandra regarding this incident DD No. 15A, dt. 05.08.2005, PSNDLS Ex. PW4/C. He further deposed that on the next day he produced the accused Mukesh before the court and vide the order of the court the present case has been transferred to PSOIA. He correctly identified the accused.
4.5 PW5 ASI Om Prakash deposed that on 05.08.2005 he was posted as HC at PSOIA and on that day he received DD No. 6, PPOIA Phase2, dt. 05.08.2005 regarding kidnapping of boy namely Kunal, S/o Sh. Rohtash upon which he alongwith Ct. Dinesh went to A2, Harkesh Nagar, OIA Phase2 and met Shyambir who informed that his grandson namely Kunal was playing outside the house and he was kidnapped by 6 his newly appointed as servant namely Mukesh. He further deposed that complainant also informed that his sister namely Angoori Devi had seen that Mukesh had taken Kunal towards Harkesh Nagar Chowk, OIA Phase2. He further deposed that he recorded statement of Shyambir Ex. PW2/A and put his endorsement on it vide Ex. PW5/A and prepared the rukka and got the FIR registered through Ct. Dinesh. He further deposed that Ct. Dinesh got the FIR registered and came back at the spot and handed over copy of FIR and original rukka to him. Thereafter further investigation was handed over to ASI Pritam Singh. He correctly identified the accused.
4.6 PW6 ASI Daya Nand deposed that on 16.09.2005 he was posted as constable at PPOIA and on that day at about 6.00 am he alongwith IO / ASI Pritam Singh visited the house of complainant i.e. A 2, Harkesh Nagar, OIA Phase2. He further deposed that they alongwith brother of complainant namely Rohtash went to Sarai Kale Khan bus stand and IO apprehended the accused namely Upender and interrogated him. He further deposed that IO recorded the disclosure statement of accused Upender Ex. PW6/A and conduct personal search and arrested the accused vide memos Ex. PW1/B and PW1/C. He correctly identified the accused Upender.
4.7 PW7 Ct. Dinesh Tyagi deposed that on 05.08.2005 he was posted as Ct. at PSOIA and on receiving of DD No. 5A he alongwith HC Om Prakash reached at the spot i.e. A2 Harkesh Nagar, OIA where they met complainant Shyamvir. He further deposed that IO recorded the statement of complainant Ex. PW2/A and prepared rukka Ex. PW5/A on the same and gave it to him for registration of FIR. He further 7 deposed that after registration of FIR he came back at the spot and handed over the original rukka and copy of FIR to IO.
4.8 PW8 ASI Bhikamber deposed that on 05.08.2005, he was posted as constable at PPOIA PhaseII, PSOIA and on that day at around 9.10 am, he recorded DD no. 06 & 9 regarding kidnapping of child Kunal and copy of the said DD is Ex.PW8/A. He further deposed that he had brought order dt. 28.06.2017 in which the register no. 2 (Roznamcha A&B including PPOIEIII) as per which the said register was destroyed as the case is 13 years old. The photocopy of the said order is placed in file MarkA. 4.9 PW9 Retd. ASI Pritam Singh deposed that on 05.08.2005 he was posted as ASI at PPOIEII and on that day he was present at PPOIEII and received DD No. 06 regarding kidnapping of a child upon which reached at the spot i.e. A2, Harkesh Nagar, Okhla, New Delhi where he met HC Om Prakash, Ct. Dinesh Tyagi and one person Shyambir and Ct. Dinesh Tyagi handed over him original rukka and copy of FIR. He further deposed that he investigated the case and recorded the statement of HC Om Prakash and released HC Om Prakash. He further deposed that he alongwith Ct. Dinesh Tyagi and complainant Shyambir search for child Kunal and accused Mukesh but did not find any of them. He further deposed that he also interrogated one lady Angoori Devi who was the sister of Shyambir and on her instance prepared site plan Ex. PW9/A and recorded her statement. He further deposed that on the same day at about 7.35 pm he received information that the accused namely Mukesh alongwith child Kunal was arrested u/s 41/2 CrPC by GRP staff, Old Delhi Railway station. He 8 further deposed that on 06.08.2005, the accused alongwith child was presented by GRP on Railway Court at Tis Hazari and on that day he alongwith one constable went to Tis Hazari Court and Hon'ble Court directed that accused with child will produce in the concerned court where FIR has been registered. He further deposed that on the same day, GRP police produced accused and child before concerned court at Patiala House and on the directions of concerned court he formally arrested the accused vide memo Ex. PW3/A and also recorded the statement of the police officials of GRP namely HC Hukum Singh and HC Bhoop Singh. He further deposed that the child was handed over to his father / guardian Rohtash and he took PC remand of the accused and also interrogated the accused who disclosed that one person namely Upender is also involved in this case. He further deposed that thereafter he also recorded the disclosure statement of accused Mukesh vide memo Ex. PW3/B accused was produced before Hon'ble Court and on the directions of court he was sent to JC. He further deposed that on 16.09.2005 he received the information from secret informer that accused who was involved in kidnapping of child Kunal will come at Sarai Kale Khan Bus depot upon which he alongwith other police officials went to A2, Harkesh Nagar i.e. house of complainant and took Rohtash and thereafter reached at Sarai Kale Khan Bus depot. He further deposed that after sometime, secret informer indicated towards one person and said that the accused Upender who is involved in the case is that person and Rohtash also identified the said accused as Upender. He further deposed that accused Upender was apprehended and after interrogation was arrested vide memo Ex. PW1/B and he also conducted the personal search of accused vide Ex. PW1/C. He further 9 deposed that thereafter he recorded the disclosure statement of accused Upender Ex. PW6/A and he recorded the statement of Rohtash and police officials and accused was produced before Hon'ble Court and sent to JC. He further deposed that he prepared the challan and submitted before the court. He correctly identified the accused persons.
4.10 PW10 ASI Hukam Singh deposed that on 05.08.2005 he was posted as HC at PSNew Delhi Railway Station (Crime and Railway) and on that day at about 9.40 am he received a message from control room that one person namely Mukesh kidnapped a child aged about 1 ½ year from PSOIA and he might took that child to Bihar by train. He further deposed that on that day his duty was at platform no. 4 and 5, thereafter he searched the accused in train and at about 12.00 Noon EMU Ghaziabad train stopped at platform no. 4 thereafter accused Mukesh alongwith that child came at the platform fastly and deboarded in the train and someone tried to chase him. He further deposed that he deboarded in the train and saw that accused left the child inside the train and he jumped from the train towards platform no. 2/3. He further deposed that he also jumped and chased the accused with the help of HC Bhup Singh and Ct. Ranvir and also took the possession of child and informed the same to Police control room and PSOIA. He further deposed that thereafter HC Bhup Singh prepared kalandra u/s 41.1 (a) CrPC and IO / HC Bhup Singh conducted personal search of accused and arrested him in his presence vide memos Ex. PW4/A and PW4/B. He further deposed that IO handed over the custody of child to his father namely Rohtash vide handing over memo Ex. PW1/A. He correctly identified the accused Mukesh.
105. It is pertinent to state in here that complainant Shyamveer was not examined as he was stated to have been expired and was deleted from the list of witnesses by Ld. Predecessor Court on 23.12.2016. Further PW Sanjay Shah was dropped from the list of witnesses as despite repeated summons through DCP concerned, same were received back unserved. Further PW Angoori also dropped from the list of witnesses as she was stated to have been expired.
6. After completion of prosecution evidence, statement of accused Upender under section 313 CrPC was recorded on 13.11.2018 wherein accused Upender denied all the allegations as alleged against him by the prosecution us/ 313 CrPC.
Statement of accused Mukesh Mishra u/s 313 CrPC was recorded on 07.12.2018 wherein he stated that he alongwith accused Upender has took a child of Rohtash and that they took the child to Railway Station where they were apprehended.
Further accused persons chooses not to lead any evidence in his defence and matter was fixed for final arguments.
7. I heard the Ld. APP for the state and Ld. counsel for the accused persons and perused the case file carefully.
8. It is argued by Ld. APP for the State that all the witnesses adduced by prosecution supported the case of prosecution. It is further argued that testimony of PW1 Rohtash, PW4 Bhoop Singh and PW10 ASI Hukum Singh proved that child Kunal was recovered from accused Mukesh Mishra and that he had taken the child away from custody of lawful guardian without their consent. It is further argued that accused 11 Mukesh Mishra in his statement u/s 313 CrPC has admitted the factum of kidnapping of child Kunal alongwith accused Upender. It is further argued that prosecution has able to prove its case beyond reasonable doubts and accused persons are liable to be convicted.
9. On the other hand, it is argued by counsel for accused Mukesh Mishra that complainant was never examined in this case. Further prosecution has not brought forth any motive on the part of the accused to kidnap son of Rohtash. It is further argued that material witnesses i.e. Sanjay Shah and Angoori was never examined by the prosecution. It is further argued that despite the fact that accused has apprehended from the public place, no public witness has been made by the IO. It is further argued that prosecution has not examined any witness who was present at the time of arrest of accused.
10. It is argued by counsel for accused Upender that Upender has been been falsely implicated in the present case and he has no role in the present offence. It is argued that nowhere name of accused Upender is mentioned in the complaint so moved by the complainant before the police.
11. It is settled proposition of law that burden lies upon the prosecution to prove its own case. It is the case of prosecution that accused Mukesh alongwith accused Upender had kidnapped the grandson of complainant Shyamveer from his shop on 05.08.2005 and thereafter accused Mukesh Mishra was apprehended by GRP/NDLS on 05.08.2005 alongwith the minor child Kunal and as such the accused has taken a minor from the custody of lawful guardian without his consent and has committed the offence of kidnapping.
1212. The object and scope of law regarding the offence of kidnapping is explained by Hon'ble Apex Court in Parkash v. State of Haryana, (2004) 1 SCC 339, wherein it was observed:
7. Section 361 IPC reads:
"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 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 of 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 the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose."
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 Section 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 control appears to be compatible with the independence of action and movement of 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 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 13 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.
13. Prosecution in order to prove its case has examined PW1 Rohtash, father of the victim Kunal and son of complainant, PW4 SI Bhoop Singh and PW10 ASI Hukum Singh i.e. witnesses of arrest of accused Mukesh Mishra and recovery of child Kunal.
14. PW1 Rohtash during the course of his testimony has stated on 05.08.2005 at about 8.30 pm he was informed by his father that accused Mukesh Mishra has taken his 11/2 year old son Kunal without permission of complainant and that when he alongwith his worker Sanjay reached at platform no. 4, NDLS he saw accused Mukesh Mishra having his son and in meantime police reached at spot and apprehended Mukesh Mishra.
PW4 SI Bhoop Singh during the course of his testimony has stated that on 05.08.2005 his duty was on platform no. 2 and 3 at PS NDLS and on that day at about 9.45 am through wireless he received a message that a boy namely Kunal has been kidnapped by one person namely Mukesh Mishra from Okhla and said boy may be carried to Bihar by rail. He further deposed that at about 12.05 pm he heard loud noise from a train namely EMU Ghaziabad which was stopped on platform no. 4 and upon suspicion they heard a noise and apprehended accused and came to know that accused is same person who has kidnapped son of Rohtash. He further deposed that they met Sanjay at the spot who informed himself to be father of victim and custody of victim Kunal was handed over to him.
14PW10 ASI Hukam Singh during the course of his testimony has deposed that on 05.08.2005 he was posted as HC at PSNew Delhi Railway Station (Crime and Railway) and his duty was on platfrom no. 4 and 5 and on that day at about 9.40 am he received a message from control room that one person namely Mukesh kidnapped a child aged about 1 ½ year from PSOIA and he might took that child to Bihar by train. He further deposed that he searched the accused in train and at about 12.00 Noon EMU Ghaziabad train stopped at platform no. 4 thereafter accused Mukesh alongwith that child came at the platform fastly and deboarded in the train and someone tried to chase him. He further deposed that chased the accused with the help of HC Bhup Singh and Ct. Ranvir and also took the possession of child and informed the same to Police control room and PSOIA. He further stated that custody of child was handed over to Rohtash by IO.
15. Testimony of all the said witnesses goes to prove the fact that accused Mukesh Mishra on 05.08.2005 takes the minor Kunal from the lawful custody of his guardians without their consent and he was thereafter apprehended with the child from New Delhi Railway Station.
16. It is argued by the counsel for the accused Mukesh Mishra that:
a) Complainant (in whose custody victim was last seen), Angoori Devi (who is eye witness of taking of minor by accused) and Sanjay ( witness of recovery of child) were never examined by the prosecution.
b) That as per the testimony of PW4, Ct. Ranvir was alongwith then at the time of arrest, however he is not cited as witness by the prosecution.15
c) That although PW4 stated during his deposition that custody of child was handed over to father Sanjay, PW10 during the course of his testimony has stated that custody of child was handed over to Rohtash.
d) That prosecution has failed to show any motive of the accused Mukesh Mishra behind the alleged incident.
17. With regard to the first arguments that relevant witnesses has not been examined by the prosecution, it is pertinent to state in here that Complainant as well as Angoori Devi were informed to have been expired at the time when the said witnesses were summoned for their deposition, while witness Sanjay was never traced out on the address so provided on the case file. All the said witnesses were dropped.
18. At this stage, the question which arose is, whether non examination of the said witnesses by the prosecution is fatal to its case. In the present case, the fact that Victim Kunal was taken away by Mukesh Mishra was proved by PW1 Rohtash, son of the complainant in his testimony. He deposed that he was informed about the same by his father i.e. complainant in the present case. Said fact is not even disputed by the accused. Further, complaint so lodged by Shyambir regarding kidnapping of his grandson by Mukesh Mishra is proved by IO ASI Pritam Singh who deposed as PW9, Constable Dinesh Tyagi PW7 and Asi Om Prakash (PW5) who were present with the IO at the time of registering of complaint.
It is further pertinent to state in here that in the said complaint, it has been specifically mentioned by complainant that her sister Angoori has informed him that his employee has taken Kunal towards Harkesh Nagar.
16Merely because, said witnesses have expired at the time of deposition, benefit of the same cannot be given to the accused, moreso when case of the prosecution is proved by other witnesses.
19. Be that as it may, it is pertinent to state in here that accused Mukesh Mishra in his statement u/s 313 Cr.P.C has admitted the factum of kidnapping of minor child Kunal by him. Relevant portion of statement u/s 313 Cr.P.C of accused Mukesh Mishra is being reproduced as under:
".......Q1. It is in evidence against you that on 05.08.2005 at about 8.00 am at A2, Harkesh Nagar Gali, New Delhi, you alongwith other coaccused namely Upender in furtherance of your common intention had kidnapped a minor boy namely Kunal out of keeping his lawful guardianship i.e. Rohtash. What you have to say?
Ans: It is incorrect. Victim Kunal was son of Rohtash. Rohtash who was landlord of Upender has some quarrel with Upender and he gave beatings to Upender. Thereafter Upender came to me and asked me to pick the child of Rohtash and thereafter asked Rohtash as to why he gave beatings to Upender. Thereafter we picked Kunal. Thereafter we keep on roaming and went to Railway station with Kunal....."
In the present case, although testimony of witnesses have proved that accused Mukesh Mishra has taken the minor out of the custody of their guardians without their consent, accused Mukesh Mishra in his statement u/s 313 Cr.P.C has admitted the fact of kidnapping Kunal.
20. With regard to the argument that although as per the testimony of the prosecution witnesses Ct. Ranvir was present at the spot at the 17 time of recovery of child, however he was never made as witness, it is pertinent to state in here that merely because a person present at the spot at the time of alleged incident was not made a witness cannot be fatal to the case of prosecution. Although there is lacunae on the part of investigating agencies in this regard, however benefit of the same cannot be given to accused. Moreso, in the present case, other two police officials, who arrested accused Mukesh Mishra from the spot and recovered the child were examined by the prosecution. In this regard, I may also gainfully refer to the observations made by Hon'ble Apex Court in Sukhwinder Singh v. State of Punjab, (2014) 12 SCC 490 it was observed by Hon'ble Apex Court:
18. But, if such mistakes or lapses are given undue importance every criminal case will end in acquittal. While it is true that the police should not involve innocent persons, fabricate evidence and obtain convictions, it is equally true that cases in which substratum of the prosecution case is strong and substantiated by reliable evidence, lapses in investigation should not persuade the court to reject the prosecution case. The court with its vast experience should be quick to notice mischief if there is any. Incompetent prosecuting agencies or prosecuting agencies which are driven by extraneous considerations should not be allowed to take the court for a ride. Particularly in offences relating to women and children, which are on the rise, the courts will have to adopt a pragmatic approach.
No scope must be given to absurd and fanciful submissions. It is true that there can be no compromise on basic legal principles, but, unnecessary weightage should not be given to minor errors or lapses. If courts get carried away by every mistake or lapse of the investigating agency, the guilty will have a field day. The submissions relating to alleged overwriting and discrepancies in timings and dates, therefore, are rejected 18
21. With regard to the arguments, that there is material contradiction in the testimony of prosecution witnessess as although PW4 during the course of his deposition has stated that custody of child was handed over to father Sanjay while PW10 during the course of his testimony has stated that custody of child was handed over to Rohtash, it is pertinent to state in here that as per the child handing recovery memo Ex. PW1/A child was handed over to Sanjay by the police officials. Said recovery memo further states the word Kunal s/o Rohtash. Be that as it may, it is settled proposition of law that minor discrepancies in the testimony of witnesses, which are not material to case, cannot be made a ground of acquittal of accused. In the present case, person to whom custody of victim was handed over by police officials is not matter in issue. Further this court cannot turn nelson eye towards the fact that the incident took place on 05.08.2005 while the testimony of the witnessess was recorded in the year 2017 i.e. after the lapse of about 12 years. Further in Shyamal Ghosh v. State of W.B., (2012) 7 SCC 646 it was observed by Hon'ble Apex Court:
68. From the above discussion, it precipitates that the discrepancies or the omissions have to be material ones and then alone, they may amount to contradiction of some serious consequence. Every omission cannot take the place of a contradiction in law and therefore, be the foundation for doubting the case of the prosecution. Minor contradictions, inconsistencies or embellishments of trivial nature which do not affect the core of the prosecution case should not be taken to be a ground to reject the prosecution evidence in its entirety. It is only when such omissions amount to a contradiction creating a serious doubt about the truthfulness or creditworthiness of the witness and other witnesses also make material improvements or contradictions before the court in order to render the evidence unacceptable, that the courts may not be in a position to safely rely upon such evidence. Serious contradictions and omissions which 19 materially affect the case of the prosecution have to be understood in clear contradistinction to mere marginal variations in the statement of the witnesses. The prior may have effect in law upon the evidentiary value of the prosecution case; however, the latter would not adversely affect the case of the prosecution.
22. With regard to the argument that prosecution has failed to show that there was any motive with the accused Mukesh Mishra to kidnap child of Rohtash namely Kunal, it is settled proposition of law that proving of motive behind the crime is not necessary for the prosecution, and absence to prove the same, does not effect the case of prosecution.
23. In light of the testimony of PW1, PW4 and PW10 as well as documents annexed, prosecution has able to prove beyond reasonable doubt that accused has kidnapped, mainor son of Rohtash namely Kunal and same was recovered from him on the same day from new Delhi Railway station. In view of the same accused Mukesh Mishra stands convicted for the offence punishable u/s 363 IPC.
24. With regard to accused Upender, it is pertinent to state in here that neither the complainant in his initial complaint has named accused Upender, nor as per the version of Angoori Devi (as mentioned in the complaint) accused Upender was present at the shop of complainant at the time of kidnapping Kunal. Furthermore, child was recovered from the custody of accused Mukesh Mishra only and accused Upender was not present at New Delhi Railway Station at the time of recovery of child. The only evidence as brought against accused Upender is that accused Mukesh Mishra in his disclosure statement has stated that kidnapping was done by him in furtherance of common intention with accused 20 Upender. It is pertinent to state in here that accused Upender was arrested only after a period of one month of the commission of alleged offence. There is no evidence brought forth against Upender to show or prove that he has conspired with accused Mukesh Mishra for commission of present crime or that he has done any act in furtherance of common intention. Prosecution has brought forth even an iota of evidence against accused Upender. In view of the same, accused Upender stands acquitted for the offence he is charged for.
25. In light of the discussions made above, accused Mukesh Mishra is convicted for the offence he is charged for and accused Upender is acquitted for the offence he is charged for.
ANNOUNCED IN OPEN COURT (ANUBHAV JAIN)
Today i.e. 18.12.2018 METROPOLITAN MAGISTRATE02
SOUTH EAST, SAKET COURTS,
NEW DELHI
Present judgment consisted of 20 pages and each page bears my signatures.
(ANUBHAV JAIN) METROPOLITAN MAGISTRATE02 SOUTHEAST, SAKET COURTS, NEW DELHI