Delhi District Court
State vs Pintu Kumar on 10 October, 2017
IN THE COURT OF SHRI KULDEEP NARAYAN
ADDITIONAL SESSIONS JUDGE (PILOT COURT)
WEST: TIS HAZARI COURTS: DELHI
SC No.22/17
FIR No. 351/2016
U/s. 364A IPC
P.S Mundka
In the matter of :
State
versus
Pintu Kumar
S/o Shri Umesh Das
R/o H.No.461, Gali No.5,
Laxmi Vihar, Prem Nagar
Delhi.
Date of Institution : 22-12-2016
Date of reserving Judgment : 26-09-2017
Date of pronouncement : 10-10-2017
Appearances
For the State : Ms. Reeta Sharma,
Additional Public Prosecutor.
For the Accused persons : Shri M.P. Sinha , Advocate.
Sessions Case No.22/2017 Page 1/53
JUDGMENT
1. Accused namely Pintu Kumar son of Shri Umesh Das, aged about 25 years, was sent up for trial on the basis of report under Section 173 of the Code of Criminal Procedure, 1973 (Cr.P.C) i.e charge-sheet, submitted on 14.12.2016 upon conclusion of investigation into First Information Report (FIR) no. 351/2016 of police station (PS) Mundka for the offence punishable under Section 364A of the Indian Panel Code, 1860 (IPC). Prosecution Version
2. The prosecution story, in brief, is that the accused kidnapped minor child of the complainant from the school and took him to Bihar. The accused also asked the complainant to get him married to her sister in lieu of return of her child. The police mounted technical surveillance, traced the location of the accused, arrested him and recovered the kidnapped child.
3. As per the charge-sheet, the present FIR No.351/2016 under Section 364A IPC was registered on 14-09-2016 on the complaint of Smt. Pooja Devi wife of Sh. Mukesh Kumar who stated Sessions Case No.22/2017 Page 2/53 in her complaint that she was living on rent with her husband and children at village Tikri Kalan, Delhi, she was a house-wife, while her husband worked in a factory. The complainant stated that in the morning she had dropped her son namely master Priyanshu Raj Singh, who studied in class second, to his school i.e Primary School, Tikri Kalan. Further, the complainant stated that at about 1:00 p.m, she received a telephonic call on her mobile number 97189 89624 from mobile number 78359 99532. The caller disclosed himself to be Pintu Kumar who stated that her son Priyanshu Raj Singh was in his custody and asked her to get her sister namely Amisha married to him and only then, he would return her son. Pintu Kumar let her talk with master Priyanshu Raj Singh who told that Pintu uncle had brought him. The complainant further stated that she went to the school of her son where his class teacher told that one boy, who told himself to be the uncle of master Priyanshu Raj Singh, had taken him one hour ago. The complainant narrated the whole incident to her husband and tried to contact Pintu Kumar, but his phone was switched off. The complainant further Sessions Case No.22/2017 Page 3/53 stated that she recognised the voice of Pintu Kumar as he was her neighbourer at village Hiran Kudna, Delhi.
4. The investigation of the case was handed over to Sub-Inspector (S.I) Manoj Chahar, the Investigation Officer (I.O) The I.O made efforts to search the kidnapped child at Metro Station, Railway Station, got flashed the WT message and got published 'Hue and Cry Notice'. The I.O also put the mobile number of accused Pintu Kumar on surveillance. Thereafter, IO came to know that the location of accused Pintu Kumar was traced to be in Bihar. I.O. informed the Bihar police also. I.O alongwith Smt. Pooja Devi, the complainant, Sh. Mukesh Kumar, her husband and Head Constable (HC) Devender, constable Sunil and constable Shiyogi left for Bihar.
5. On 17.9.2016, en route to Bihar, I.O received information that accused Pintu Kumar had been arrested by SI Mithlesh Kumar of Police Station Sheikhpura, Bihar and the kidnapped child Priyanshu Raj Singh had been recovered. Accordingly, IO reached at Police Station, Sheikhpura, Bihar and took the accused Pintu Sessions Case No.22/2017 Page 4/53 Kumar, his mobile phone and purse in his custody. The accused Pintu Kumar was produced before the learned Chief Judicial Magistrate, Sheikhpura, and his transit remand was obtained. IO brought accused Pintu Kumar and the kidnapped child Priyanshu Raj Singh to Delhi. IO also recovered the school bag of master Priyanshu Raj Singh on 19.09.2016 at the instance of the accused Pintu Kumar from his house.
6. During the investigation, I.O recorded the statement of the witnesses, prepared the site plan, sent the exhibits to FSL, obtained their result and got recorded the statement of complainant Smt. Pooja Devi and master Priyanshu Raj Singh under Section 164 Cr.P.C before the learned Metropolitan Magistrate.
7. After concluding the investigation, the I.O came to a conclusion that sufficient evidence were collected against the accused Pintu Kumar qua commission of offence under Section 364A IPC and thereafter, he prepared chargesheet and filed in the court on 14.12.2016.
8. On the basis of charge-sheet and the documents submitted with it, the learned Additional Sessions Case No.22/2017 Page 5/53 Chief Metropolitan Magistrate (West), Tis Hazari Courts took cognizance of offence under Section 364A IPC and after complying with the provisions contained in Section 207 Cr.P.C, vide order dated 14.12.2016 committed the case to the Court of Session for 22.12.2016.
Charge
9. On 09.01.2017, after hearing the learned Additional Public Prosecutor for the State and the counsel for the accused, charge was framed against the accused for commission of offence punishable under Section 364 A IPC. The charge so framed was read over and explained to the accused to which he did not plead guilty and claimed trial. Prosecution Witnesses
10. To bring home the afore-mentioned charge to the accused, the prosecution got examined Smt. Pooja Devi (PW-1), Smt. Manju Bansal (PW-2), master Priyanshu Raj Singh, (PW-3), Shri Mukesh Kumar Singh (PW-4), ASI Devender Singh (PW-
5), SI Mithlesh Kumar (PW-6), Shri Sunil Paswan (PW-7), Shri Manu Ravidas (PW-8), ASI Daulat Ram (PW-9), IO/SI Manoj Kumar (PW-10) and constable Sunil (PW-11).
Sessions Case No.22/2017 Page 6/5311. During the course of trial, vide order dated 1.3.2017, learned Counsel for the accused made statement under Section 294 Cr.P.C thereby admitting the genuineness of documents i.e proceedings (Ex.PA) and statement (Ex.PA1) under Section 164 Cr.P.C pertaining to complainant Smt. Pooja Devi, proceedings (Ex.PB) and statement (Ex.PB1) under Section 164 Cr.P.C pertaining to master Priyanshu Raj Singh, Call Detail Record (CDR), Customer Application Form (CAF), I.D Proof (copy of Aadhaar card) of mobile no. 97189 89624 in the name of Pintu Kumar (Ex.PC) collectively, CDR, CAF, I.D Proof (copy of Aadhar card) of mobile no. 78359 99532 in the name of Umesh Kumar (Ex.PD) collectively, MLC of master Priyanshu Raj Singh ((Ex.PE), copy of FIR No.351/2016, police station Mundka with certificate under Section 65-B of the Indian Evidence Act (Ex.PF) collectively. Accordingly, Shri Manoj Kumar, learned Metropolitan Magistrate, Tis Hazari Court, ASI DO Ravinder Kumar, Nodal Officer, Idea Cellular Ltd and Dr. Rohit Kumar, CMO, SGM Hospital were dropped from the list of witnesses.
Sessions Case No.22/2017 Page 7/5312. Again, vide order dated 10.07.2017, learned Counsel for the accused made statement thereby admitting the genuineness of documents i.e certificate dated 19.11.2016 (Ex.PG), photocopy of school leaving certificate (Ex.PH), admission card (PJ), affidavit (Ex.PK) and photocopy of attendance register (Ex.PL. Accordingly, Principal, MCD Primary School, Village Tikri Kalan, Delhi was dropped from the list of witnesses.
13. Learned Additional Public Prosecutor also made separate statement thereby dropping constable Shiyogi Ram from the list of witnesses as his testimony was of repetitive nature. Documentary Evidence
14. The prosecution also relied on following documents tendered into evidence i.e Rukka (Ex.PW-1/A), Receipt pertaining to the kidnapped child namely Priyanshu Raj Singh (Ex.PW-1/B), Arrest memo of accused Pintu (Ex.PW-5/A), Seizure memo of mobile phone and purse of the accused (Ex.PW-5/B), Seizure memo of kidnapped child Priyanshu Raj Singh (Ex.PW-5/C), Arrest memo of accused Pintu prepared at District Sheikhpura, Bihar (Ex.PW-6/A), Certified copy of Sessions Case No.22/2017 Page 8/53 order dated 17-9-2016 whereby remand of accused Pintu was granted (Ex.PW-6/B),Statement of Shri Manu Ravidas (Ex.PW-8/A), Site Plan (Ex.PW- 10/A), Disclosure Statement (Ex.PW-10/B), Seizure memo of school bag (Ex.PW-10/C), Seizure memo of exhibits and sample seal of Sanjay Gandhi Memorial Hospital (SGMH), Mangol Puri (Ex.PW-10/D), Application for recording statement of master Priyanshu Raj Singh (Ex.PW-10/E), application for providing copies of statements (Ex.PW-10/F), Original statement under Section 164 Cr.P.C of Smt. Pooja Devi recorded by the learned Metropolitan Magistrate (Ex.PA-1), Statement under Section 164 Cr.P.C of master Priyanshu Raj Singh (Ex.PB-1), Proceedings under Section 164 Cr.P.C pertaining to the complainant namely Smt. Pooja Devi (Ex.PA), Proceedings under Section 164 Cr.P.C pertaining to master Priyanshu Raj Singh (Ex.PB), CDR, CAF and I.D Proof (Aadhar Card) in respect of mobile phone no. 97189 89624 in the name of accused Pintu Kumar (Ex.PC collectively), CDR and CAF and I.D Proof (Aadhar Card) in respect of mobile phone no.78359 99532 in the name of Umesh Kumar (Ex.PD Sessions Case No.22/2017 Page 9/53 collectively), MLC dated 19.9.2016 of master Priyanshu Raj Singh (Ex.PE), Copy of FIR and certificate under Section 65-B of the Evidence Act (Ex.PF collectively), Certificate dated 19.11.2016 issued by the Principal, M.C Primary School, Tikri Kalan (Ex.PG), Attested copy of school leaving certificate (Ex.PH), Admission card (Ex.PJ), Affidavit (Ex.PK), and attested photocopy of attendance register (Ex.PL).
Statement of Accused
15. After conclusion of prosecution evidence, on 18.09.2017, statement of the accused Pintu Kumar under Section 313 Cr.P.C was recorded wherein he denied the correctness of all the incriminating circumstances appearing in the evidence against him and stated that he was falsely implicated in the present case.
16. Accused Pintu Kumar stated that he was made a scapegoat in the case by the complainant Smt Pooja Devi and her husband who used to frequently quarrle with each other. The complainant planned a scheme to teach a lesson to her husband. She told him (the accused) to take the child to his native village and she would soon follow him. The Sessions Case No.22/2017 Page 10/53 accused further stated that the complainant remained in contact with him from the moment he had picked up the child and was also aware of his location. Further, Mukesh Kumar, husband of the complainant who was to make payment of the committee (chit fund) managed to get the FIR registered against him just to aviod making the payment.
The accused Pintu Kumar did not lead any evidence in defence.
Final Arguments
17. I heard the arguments advanced by Ms. Reeta Sharma, learned Additional Public Prosecutor for the State and Shri M.P. Sinha, learned Counsel for accused. I also perused the entire material available on record.
18. During the course of arguments, learned Additional Public Prosecutor for State submitted that the accused kidnapped master Priyanshu Raj Singh who was a minor by taking him out of the keeping of lawful guardianship of his parents without their consent and thereby giving rise to a reasonable apprehension in the mind of the parents that the child may be put to death or hurt may be Sessions Case No.22/2017 Page 11/53 caused to him. Further, the taking away of the minor child has been admitted by the accused, though the consent of the parents has been disputed. She further argued that the accused had put contradictory defences in proposing that there used to be quarrels between the complainant Pooja Devi and her husband Mukesh Kumar and therefore, in order to teach a lesson to her husband, the complainant asked the accused to take her child with him, whereas on the other hand, it was proposed that the complainant and her husband Mukesh Kumar conspired together to implicate the accused in the present case. Further, the apprehension of causing harm to the child which had arisen in the mind of his parents could not be rebutted by the accused who also did not lead any evidence in his defence.
19. Per contra, learned Counsel for the accused argued that there was no contradiction in the defence put by the accused as the accused was made to understand by the complainant that there used to be quarrels between her and her husband, whereas both of them in fact, conspired together to implicate him in the present case to avoid payment Sessions Case No.22/2017 Page 12/53 of committee (chit fund amount). He further argued that there was no question of arising of any apprehension that the child may be put to death or hurt may be caused to him as the complainant remained in constant touch with the accused who bonafidely informed her about his location. The accused had taken the child with the consent of the complainant and therefore, there was no mention of any such threat or apprehension in the statements recorded under Section 164 Cr.P.C. By giving her consent to take the child from the school, the complainant, in fact, entrusted the custody of the child to the accused. Further, the child faced no problem in the company of the accused and remained happy throughout. Learned Defence Counsel further referred to the Call Details Record (CDR) of mobile number subscribed to the accused which was being used by the complainant to highlight that both accused and the complainant were constantly in touch with each other. He reiterated that due to some dispute regarding the committee (chit fund amount), the accused was made a scapegoat and was falsely implicated in the present case. The accused, therefore, deserves Sessions Case No.22/2017 Page 13/53 acquittal. The learned Defence Counsel also relied upon Sartaz @ Sonu v. State, 2014 SCC online DEL 1689.
20. In rebuttal, the learned Additional Public Prosecutor argued that none of the defences put forward by the accused during the arguments was put to the prosecution witnesses. Further, in the facts of the present case only a reasonable apprehension in the mind of the parents of the kidnapped child, and not any actual threat, is to be looked into and such apprehension was quite natural to arise in the mind of the parents of the child. Further, there can be no lawful entrustment as argued by the learned Defence Counsel and no material contradiction could be brought forth in the testimonies of the prosecution witnesses going to the root of the case and therefore, the accused is liable to be convicted in the present case.
21. I have given my thoughtful consideration to the submissions of both sides.
Sessions Case No.22/2017 Page 14/53Statutory Provisions
22. The substantive offence which the accused has been charged with is reproduced as under:
364A. Kidnapping for ransom, etc.- Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or (any foreign State or international inter- governmental organisation or any other person) to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine.
23. It is also useful to extract the definition of 'kidnapping' as defined under Section 361 IPC which is 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 of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, wihtout 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 or custody of such minor or other person.
Sessions Case No.22/2017 Page 15/53Exception.- 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.
24. As is clear from the above-mentioned provision, for commission of offence under Section 364A IPC, following are the essential ingredients:
(i) Kidnapping or abduction or keeping the person in detention after such kidnapping or abduction and
(ii) Threat to cause death or hurt ( of such person) or (accused) by conduct, gives rise to reasonable apprehension that such person may be put to death or hurt or hurt or death is caused to such person
(iii) in order to compel the Government or foreign State,or international, inter-governmental organizations or any other person.
to do or, abstain from doing any act or, to pay a ransom.
Sessions Case No.22/2017 Page 16/53Points for Determination
25. In view of the above-mentioned provision of law and the submissions advanced on both sides, following points for determination are emerging in the present case :-
1. Whether the accused took the minor child Priyanshu Raj Singh out of the keeping of lawful guardianship without the consent of the complainant ?
2. If so, whether the accused, by his conduct, had given rise to a reasonable apprehension in the mind of the complainant, mother of the child that the child may be put to death or hurt may be caused to him ?
3. Whether the accused kidnapped the child in order to compel the complainant to get her sister namely Amisha married to the accused ?
Testimonies of Prosecution Witnesses
26. To prove the afore-mentioned charges against the accused, the prosecution got examined 11 witnesses in all. The testimonies of the Sessions Case No.22/2017 Page 17/53 prosecution witnesses and analysis thereof, are referred as under :
Kidnapping and Reasonable Apprehension of the Parents
27. Smt. Pooja Devi (PW-1) deposed that on 14.09.2016, at about 8 a.m., she had dropped her son namely master Priyanshu Raj Singh, at Primary School, Tikri Kalan. Her son was about 6 years old at that time. PW-1 stated that at about 1 p.m, she received a telephone call from accused Pintu who stated that her son was in his custody and he would return his son only when she (PW-1) got him married to her sister namely Amisha. PW-1 asked the accused to hand over the phone to her son so that she could talk to him. Her son told that Pintu had picked him up from the school on the pretext of her illness. PW-1 stated that she immediately went to the school and came to know from the teacher that her son had already been taken from the school by a boy having shallow complexion one hour ago.
Thereafter, PW-1 made telephone call to accused Pintu, but his phone was switched off. PW-1 informed her husband about the incident. PW-1 alongwith her husband went to police station Sessions Case No.22/2017 Page 18/53 Mundka. She made the complaint (Ex.PW-1/A). PW-1 further stated that accused Pintu was known to her as he would visit her house once in a month for taking committee amount (chit-fund) from her husband. The accused was also having shop at Tikri Kalan.
28. PW-1 further deposed that on 15.09.2016, accused Pintu again called her telephonically and asked her to board the train to Bihar and reach at his house alone. Accused also told that he was coming to her house alongwith her son and asked PW-1 to get the marriage of her sister arranged in Bihar. PW-11 conveyed this fact to the I.O and also called accused Pintu to tell that she was coming to Bihar alone. PW-1 further deposed that she was using mobile phone having SIM No. 97189 89624. PW-1 could remember only last two digits i.e 32 of the mobile number being used by the accused Pintu. Further, PW-1 alongwith police officials left for Bihar. I.O told PW-1 that location of mobile phone of accused Pintu was found to be at Barauni junction. I.O left from Barauni junction with some police officials. PW-1 further deposed that I.O recovered her son from accused Pintu and Sessions Case No.22/2017 Page 19/53 informed her in this regard. IO handed over the child to her at Barauni junction vide receipt Ex.PW- 1/B. PW-1 further deposed that she appeared before the learned Metropolitan Magistrate and made statement under Section 164 Cr.P.C. Statement of her son master Priyanshu Raj Singh under Section 164 Cr.P.C was also recorded. PW-1 correctly identified the accused Pintu Kumar in the court and her son's school bag and its contents as Ex.P-1 (collectively).
29. In her cross-examination, PW-1 stated that her son knew the accused very well and used to address him as 'chacha' (uncle). On 14.09.2016, the accused had come to her house at about 8.30 a.m. and prior to it, the accused had come to her house 15 to 20 days ago. She had also noticed that the accused was a bit angry due to dispute between him and her husband regarding the committee (chit fund amount). PW-1 further stated that both she and her husband were using the mobile number 97189 89624, but the name of subscriber was not known to her. On further cross-examination, PW-1 stated that she had made several telephone calls to accused on 14.09.2016 after 1 p.m, but prior to 1 Sessions Case No.22/2017 Page 20/53 p.m., no telephonic calls were exchanged between her and the accused. PW-1 further stated that her son was recovered on 17.09.2016. She and her husband had left Delhi to go to Bihar on 16.09.2016 with the police official and after Barauni junction, she alongwith police officials had proceeded to Nagochhia railway station at about 10 a.m, on 17.09.2016, from where she had gone to her parental house, but in the meantime, she received telephonic call of the I.O and took a train to reach at Barauni junction at about 7 p.m., on 17.09.2016 itself. On further cross-examination, PW-1 stated that the I.O had not told her about the place where he was going from Barauni junction, on which PW-1 was confronted with her statement Ex.PW-1/DA and she stated that as per her statement, the police officials had left for Sheikhpur, Bihar. She further clarified that the said fact was told to her by the police officials who had accompanied her further.
30. PW-1, on further cross-examination, stated that she had reached at the school of her child after about 10 minutes of receiving the call and on that day, class-teacher namely Ms. Manju was absent.
Sessions Case No.22/2017 Page 21/53She had met with a teacher and also made enquiry from other students who told her that one shallow complexion boy had taken her son from school on the pretext of her illness. PW-1 further stated that she had met the class teacher Ms. Manju only on the day of admission of her son though in her statement Ex.PW-1/A, she had stated that the class teacher had told her one boy claiming to be the chacha of master Priyanshu Raj Singh had taken him one hour ago. PW-1 further stated that at the time of admission of her child, she had gone to school alongwith her child and no one else accompanied her. She denied the suggestion that she had asked the accused to take her child to Bihar on the day of incident or that there was any money dispute between her husband and the accused.
31. Smt. Manju Bansal (PW-2 ) deposed that she was teaching at MCD Primary School, Tikri Kalan, Delhi and was class teacher of class second. Master Priyanshu Raj Singh was student of her class. On 14.9.2016, master Priyanshu Raj Singh had come to the school in the morning. She stated that at about 11-12 noon, one person came to the school and told her that mother of master Priyanshu Sessions Case No.22/2017 Page 22/53 Raj Singh was unwell and he was sent by his mother to take the child. PW-2 inquired from Priyanshu who told that the said person was his uncle (chacha). PW-2 allowed the child to accompany the said person with the permission of the Principal of the school. PW-2 correctly identified the accused in the court to be the said person. PW-2 further deposed that on the next day, she could not go to school as she was suffering from chickengunia disease. The police also recorded her statement.
32. In her cross-examination, PW-2 stated that she was present in the school on 14.09.2016. She came to know from the fellow teachers on 16.09.2016 that the person who had taken the child Priyanshu from the school had kidnapped him. On further cross-examination, PW-2 stated that no student was used to be handed over to any stranger when school was over and if parents of a student made request for sending the student with some other person, a written request of the parents in this regard was to be taken. Further, PW-2 stated that no written or oral request was made by the parents Sessions Case No.22/2017 Page 23/53 of child Priyanshu for handing over him to the third person.
33. Master Priyanshu Raj Singh (PW-3) stated that previously he was residing at Tirki Kalan, Delhi and was studyig in Uttari Delhi Nagar Nigam School in class second. PW-3 stated that last year (the witness could not remember the date and time) Pintu had come to his school and told him that his mother was in Bahadurgarh and was ill. PW-3 further stated that Pitnu told his madam Manju that his mother was lying in a hospital at Bahadurgarh. Pintu took him to station and from the station to Lakhi Sarai by train. PW-3 stated that they stayed at the house of Pintu's Bua. The police arrived at the house of Pintu's Bua in the night. Police brought Pintu and him back to Delhi. His statement was recorded before a Judge and he had put his thumb impression on his statement. PW-3 correctly identified the accused Pintu Kumar in the court. He also identified his school bag cotnaining one water bottle and copies already Ex.P-1 (collectively).
34. In his cross-examination, PW-3 stated that he knew accused Pintu who would often take him for Sessions Case No.22/2017 Page 24/53 outings. He would also go with accused Pintu and his younger sister namely Palak. He had also visited Bihar with accused alone before the incident. On further cross-examination, PW-3 stated that the accused had taken him to Lakhi Sarai. The accused had also provided him with meals when he had taken him to Bihar. PW-3 further stated that the accused and he would love each other.
35. Shri Mukesh Kumar Singh (PW-4) deposed that accused Pintu Kumar was known to him as he used to reside at village Hiran Kudna in his neighbourhood. PW-4 stated that accused Pintu Kumar was a member of committee (chit fund) and asked him to become its member. Accused Pintu Kumar started vising his house to collect the amount of committee (chit fund). PW-4 further deposed that after second committee (chit fund), he demanded the committee (chit fund) amount, but accused Pintu Kumar refused to give the same on one pretext or the other. There used to be telephonic conversation between the accused and his wife regarding committee (chit fund). PW-4 further deposed that accused Pintu Kumar promised to give Sessions Case No.22/2017 Page 25/53 committee (chit fund) money on Tuesday or Wednesday, however, on Wednesday i.e 14th day of year 2016, though PW-4 could not remember the month, accused Pintu Kumar took his son from the school to Bihar. PW-4 was informed by his wife regarding the incident. PW-4 alongwith his wife went to the police station and got the case registered. PW-4 further deposed that his wife told that accused Pintu Kumar had asked his wife to get her sister married to him and only thereafter, the child would be returned.
36. PW-4 further deposed that Pintu Kumar had gone to the village of his in-laws and his sister-in- law namely Amisha was seen by the accused there. When the talks for marriage were intiated, his in- laws refused to get their daughter married to Pintu Kumar due to difference of caste. PW-4 stated that he accompanied police during the search of his son at many places. Accused Pintu had told his wife that he was at Lakhi Sarai, Bihar. PW-4 alongwith I.O went to Bihar. However, the I.O deboarded the train on the way. Thereafter, PW-4 came to know that accused Pintu Kumar had been apprehended by the I.O and his son had been recovered. PW-4 met Sessions Case No.22/2017 Page 26/53 the I.O and his son at Barauni junction, the accused Pintu Kumar was sent to Delhi. The custody of the child was handed over to him vide receipt Ex.PW- 1/B. PW-4 correctly identified accused Pintu Kumar in the court.
37. In his cross-examination, PW-4 stated that on 14.09.2016, he reached at his house at about 3 p.m., after receiving the telephonic call of his wife who told him that she had received telephone call from the accused who had taken their son to Bihar and also asked them to reach there. PW-4 was also asked about his source of income and monthly expenditure in his cross-examination. He also deposed about taking a loan of Rs.25,000/- from one Usia in the month of June-July,2016 which was to be repaid in the month of June-July,2017. PW-4 denied the suggestion that the accused was falsely implicated as he had demanded money from the accused in order to repay Rs.25,000/- to said Usia which was refused by the accused. In further cross- examination, PW-4 was asked about the committee (chit fund) installments. He denied the suggestion that the story of committee amount was made to falsely implicate the accused. He further denied the Sessions Case No.22/2017 Page 27/53 suggestion that he alongwith his wife had not gone to the school of their son on 14.09.2016 due to the reason that they already knew where and with whom was the child.
Analysis
38. After perusal of the testimonies of afore- mentioned prosecution witnesses, it is clear that the accused had taken master Priyanshu Raj Singh, aged about 6 years, from his school on 14.09.2016 on the pretext that mother of master Priyanshu Raj Singh was ill and therefore the accused was sent by her to take the child from the school. Class teacher Smt. Manju Bansal (PW-2) had made inquiries from master Priyanshu Raj Singh about the accused who stated him to be his uncle (chacha). PW-2 had also seen the accused earlier who had come to the school with the mother of master Priyanshu and therefore, PW-2 after seeking permission from the Principal of the school allowed master Priyanshu Raj Singh to accompany with the accused. PW-2 categorically deposed that there was no written or oral request made by the parents of master Priyanshu Raj Singh for handing over him to any third person which goes to indicate that it was on Sessions Case No.22/2017 Page 28/53 the representation made by the accused about the illness of mother of master Priyanshu and after verifying from master Priyanshu himself, PW-2 allowed the accused to take master Priyanshu from the school. It is also evident from the testimonies of Smt. Pooja Devi (PW-1) and Sh. Mukesh Kumar Singh (PW-4) that their consent was not obtained by the accused for taking their son master Priyanshu from the school, rather accused telephonically informed Smt. Pooja Devi (PW-1) that her son master Priyanshu was in his custody and would be returned only when PW-1 gets him married with her sister namely Amisha. The testimony of master Priyanshu Raj Singh (PW-3) is also pertinent to be noted in this regard when he deposed that the accused had come to his school and told him that his mother was ill and on this pretext, the accused had taken him out of the school. It is also clear that the accused had not come back to the home of master Priyanshu after taking him out of school, but he had taken master Priyanshu to railway station and boarded a train to Bihar with him. There is no doubt about the identity of the person i.e the accused who had taken Sessions Case No.22/2017 Page 29/53 master Priyanshu from the school. Master Priyanshu (PW-3) and Ms. Manju Bansal (PW-2) duly identified the accused to be the person who had taken him out of school. Even otherwise, taking of master Priyanshu from the school to go to Bihar has not been disputed by the accused as the accused put forth a defence that such taking of master Priyanshu was with the consent of his mother Smt. Pooja Devi (PW-1).
39. During the course of arguments, a defence was put by the learned counsel for the accused that the accused was made a scapegoat and falsely implicated by Smt. Pooja Devi (PW-1) who conspired with her husband Mr. Mukesh Kumar Singh (PW-4) and in pursuance of said conspiracy, PW-1 had asked the accused to take master Priyanshu from school and to go to Bihar purportedly to teach a lesson to her husband. During the cross-examination of both PW-1 and PW-4, not a single suggestion constituting such defence was put to the witnesses. PW-1 was merely suggested that she had asked the accused to take her child to Bihar on the day of incident and similarly, PW-4 was suggested that he already Sessions Case No.22/2017 Page 30/53 knew where and with whom his child master Priyanshu was.
40. As far as the contradictions brought forth in the testimony of Smt. Pooja Devi (PW-1) with regard to her making telephonic call to the accused only after 1 p.m on 14.09.2016, whereas as per CDR (Ex.PC ), number of calls were made by PW- 1 who was using mobile number 97189 89624 subscribed in the name of the accused are concerned, suffice it to say that the accused was known to PW-1, PW-3 and PW-4 and was on visiting terms with them as the accused also belonged to Bihar. The accused had also visited the native place of Smt. Pooja Devi (PW-1 ) and had also participated at her native place in the festival of Chhath Puja. Therefore, merely the fact that PW-1 was using a mobile number subscribed in the name of the accused cannot be taken to constitute either a valid consent on her part or to be a fact constituting conspiracy with her husband to falsely implicate the accused. Similarly, even if it is assumed that certain calls were made by PW-1 to the accused on 14-09-2016 prior to 1 p.m., it cannot be assumed that PW-1 consented that the accused Sessions Case No.22/2017 Page 31/53 may take her child from the school and go to Bihar. The categorical deposition of PW-1 to the effect that she never gave her consent to the accused to take her child from the school, remained firm in the cross-examination and her overall credit-worthiness could not be impeached. As observed earlier, the testimony of Smt. Pooja Devi (PW-1) and Sh. Mukesh Kumar Singh (PW-4) while deposing in the Court are categorical with regard to their being no consent on their part to enable the accused to take master Priyanshu from the school and go to Bihar. Both Ms. Manju Bansal (PW-2) and master Priyanshu Raj Singh (PW-3) deposed in clear terms that the accused took master Priyanshu on the pretext of illness of Smt. Pooja Devi (PW-1) which was found to be false. It amply demonstrates the intention on the part of the accused to take the custody of master Priyanshu out of the keeping of his lawful guardianship without the consent of his parents. Here, the testimony of Manu Ravi Das (PW-8), who is the cousin brother of the accused is also relevant to be referred.
41. Shri Manu Ravidas (PW-8) deposed that he would do farming in village Devele, Bihar. On Sessions Case No.22/2017 Page 32/53 15.9.2016, accused Pintu Kumar had come to the village with one child. PW-8 stated that when he made inquiry about the child, he (the accused) told that he brought the child to the village as mother of the child had asked him to do so due to frequent quarrels between her and her husband and she would also be coming to the village. PW-8 further deposed that he asked the accused to make a call to mother of the child and let him talk to her on which the accused made the telephonic call to the mother of the child and both PW-8 and the child talked with her. Accused Pintu Kumar and the child stayed in the house in the night of 15.9.2016. PW-8 deposed that in the night of 16.9.2016 at about 2 p.m, the police came and took the child and Pintu Kumar to police station. PW-8 was also asked to accompany to the police station. Pintu Kumar was taken to Delhi.
42. PW-8 was cross-examined by the learned Additional Public Prosecutor for the State, after taking permission of the Court as he was resiling from his previous statement recorded under Section 161 Cr.P.C. In his cross-examination, PW-8 stated that accused Pintu Kumar was his cousin (son of Sessions Case No.22/2017 Page 33/53 his mama) and Mahender Das was his uncle (chacha). He was confronted with his statement Ex.PW-8/A, wherein the facts about his making queries from the accused and having talked with mother of the child were not found recorded. On further cross-examination, PW-8 stated that the accused had told him that the person with whom he was talking on the telephone was the mother of the child. PW-8 had not enquired about the quarrel as told by the accused. Nor he enquired about the mother of master Priyanshu Raj Singh on 16.09.2016 when she did not turn up to take her child.
43. The testimony of PW-8 accordingly does not inspire confidence being vague in nature and is certainly of no use to the accused.
44. As far as the fact of any apprehension which might have arisen in the mind of Smt. Pooja Devi (PW-1) and Sh. Mukesh Kumar Singh (PW-4) is concerned, none of such fact could be deposed by either of them. Any such apprehension were also not raised by Smt. Pooja Devi (PW-1) at the time of recording of her statement Ex.PW-1/A. On perusal of her statement recorded under Section 164 Cr.P.C Sessions Case No.22/2017 Page 34/53 Ex.PA-1, it is also clear that no such apprehension was raised by PW-1 that her son might be hurt or put to death by the accused if she did not act as per the demand of the accused for getting him married with her sister. It is further clear from the statement of master Priyanshu Raj Singh (PW-3) recorded under Section 164 Cr.P.C Ex.PB-1 as well as from his testimony that at no point of time, he was hurt or threatened by the accused in any manner. Rather, while deposing in the court, master Priyanshu (PW-3) deposed in categorical terms that both he and the accused would love each other and the accused had treated him well while going to Bihar. In fact, master Priyanshu Raj Singh (PW-3) had also gone with the accused on earlier occasions and the accused was known to him and his parents very well. Furthermore, at the time of her deposition in the court, Smt. Pooja Devi (PW-1) was put a leading question by the learned Additional Public Prosecutor regarding the fact of apprehension of harm to her son which was answered by her in the negative.
Investigation, Arrest of the Accused & Recovery of Child Sessions Case No.22/2017 Page 35/53
45. ASI Devender Singh (PW-5) deposed that on 15.9.2016, he was posted at police station Mundka as Head Constable. On that day, he joined the investigation of the present case. On 16.9.2016, he alongwith SI Manoj Kumar, constable Sunil, constable Shauzi Ram, complainant Pooja Devi and her husband Mukesh Kumar, proceeded to Bihar by train. PW-5 stated that when they reached near Barauni junction, they came to know that the location of accused Pintu Kumar was in Sheikhpura, Bihar. They, accordingly, got down at Barauni railway station leaving constable Shauzi Ram, complainant Pooja Devi and her husband. PW-5 further deposed that on 17.9.2016, he alongwith SI Manoj and constable Sunil went to police station Sheikhpura where accused Pintu Kumar as well as the kidnapped child master Priyanshu Raj Singh were already present. It was informed that Bihar Police had apprehended the accused Pintu Kumar from Devele village and recovered the kidnapped child as per the information and guidance given by Delhi Police. PW-5 witnessed the arrest of accused Pintu Kumar vide memo Ex.PW-5/A. He also witnessed the Sessions Case No.22/2017 Page 36/53 seizure memo of mobile phone containing two SIMs of idea and Reliance Co and one purse containing one ATM Card and one I.Card Ex.PW- 5/B and handing over memo Ex.PW-5/C of the kidnapped child. I.O SI Manoj Kumar produced the accused as well as the child in the concerned court and also obtained transit remand of the accused. PW-5 further deposed that at Barauni junction, the child was handed over to the complainant and her husband. PW-5 identified mobile phone containing two SIM cards as Ex.P-2 collectively and purse alongwith its contents Ex.P-3 collectively.
46. In the cross-examination, PW-5 stated that they had gone to Bihar by North-East train and on the way, Smt. Pooja Devi (PW-1) had telephonic conversation with the accused. Further, the accused was found at village Devele, situated within the jurisdiction of Sheikhpura, Bihar. PW-5 denied the suggestion that the accused was apprehended due to his constant conversation with Smt. Pooja Devi (PW-1).
47. SI Mithlesh Kumar (PW-6) deposed that he was posted as SHO Kusumbha, Observation Post Sessions Case No.22/2017 Page 37/53 (O.P) District and Police Station, Sheikhpura. On 16.9.2016 at about 21.15 hours, PW-6 was directed by Superintendent of police telephonically that accused Pintu had retained the kidnapped child in the house of one Mahender Das in village Devele. PW-6 made the departure entry at Kusumbha Observation Post and he alongwith SI Virender Sharma and other armed force proceeded to village Devele. PW-6 further deposed that he alongwith staff raided the house of Mahender and found accused Pintu Kumar and master Priyanshu Raj Singh. Accused was arrrested vide arrest memo Ex.PW-6/A. One mobile phone containing two SIM card were also found.
48. PW-6 further deposed that on 17.09.2016, Delhi Police officials came at police station Sheikhpura. The custody of accused as well as kidnapped master Priyanshu Raj Singh alongwith mobile phone and purse was handed over to Delhi Police officials. PW-6 witnessed the seizure memo Ex.PW-5/B of mobile phone and purse and seizure memo of the kidnapped child Ex.PW-5/C. He got exhibited copy of order of transit remand Ex.PW- 6/B. PW-6 correctly identified the accused Pintu Sessions Case No.22/2017 Page 38/53 Kumar in the court and also identified the case property Ex.P-2 and Ex.P-3.
49. In the cross-examination, PW-6 stated that he had received the intimation from the S.P. (Superintendent of Police) on 16.09.2016, at about 21.15 hours and the name of Mahender Das, resident of village Devele, was disclosed to him by the S.P. He further clarified that the S.P. had given the name of Mahender Kumar, but had not disclosed his other particulars and therefore, to ascertain the identity of Mahender Kumar, the secret informer was deployed and the specific information about Mahender Kumar was obtained by him on 16.09.2016 at about 22.30 hours. On further cross-examination, PW-6 admitted that he had not recorded the statement of any neighbourer or Mahender Das, though some public persons from the locality had collected at the time of recovery of the child from the accused. PW-6 denied the suggestion that the complainant Smt. Pooja Devi (PW-1) was in direct contact with the I.O of the case who had told him to go to the house of Mahender Das.
Sessions Case No.22/2017 Page 39/5350. Shri Sunil Paswan (PW-7) deposed that he was a security guard at village Devele, situated within the jurisdiction of police station Sheikhpura (Kusumbha O.P). PW-7 stated that on 16.9.2016, he had accompanied SI Mithlesh Kumar and other police officials to the house of Mahender Das in search of one kidnapped boy retained by Pintu Kumar. When they reached on the roof of the house of Sh. Mahender Das, they saw one person was sleeping on a cot with one child. The said person's name was disclosed to be Pintu Kumar and child's name was Priyanshu Raj Singh. PW-7 witnessed arrest of accused Pintu Kumar by SI Mithlesh Kumar vide arrest memo Ex.PW-6/A. PW-7 correctly identified the accused Pintu Kumar in the court.
51. In his cross-examination, PW-7 stated that he was called by S.I Mithlesh (PW-6) in the midnignt some time prior to 2 a.m., when he was present in the village Devele. He denied the suggestion that he alongwith the police officials reached at village Devele at about 4 a.m and volunteered to say that the recovery of the child was effected at about 2 a.m midnight. He further stated that SI Mithlesh Sessions Case No.22/2017 Page 40/53 Kumar (PW-6) had informed the Delhi Police telephonically.
52. ASI Daulat Singh (PW-9) deposed that on 14.09.2016, he was posted at police station Mundka as Head Constable and on that day, he was on emergency duty from 8 a.m to 8 p.m. PW-9 further deposed that complainant Pooja Devi wife of Mukesh Kumar had come to the police station and made complaint about kidnapping of her son master Priyanshu Raj Singh, aged about 6 years. PW-8 recorded statement of Smt. Pooja Devi Ex.PW-1/A and made endoresement on the same and gave it to the Duty Officer for registration of the FIR.
53. In his cross-examination, PW-9 stated that the complainant Smt. Pooja Devi (PW-1) met him around 6 p.m. She had come to the police station alongwith her husband. She had not given any written complaint and her statement was recorded. PW-9 further stated that he had not made any call on the mobile number of the accused which was given by the complainant.
54. Manoj Kumar (PW-10), the I.O of the case, deposed that on 14.9.2016, the investigation of the Sessions Case No.22/2017 Page 41/53 present case was assigned to him. PW-10 made inquiry from the complainant Smt. Pooja Devi and got published hue and cry notice and flashed wireless message regarding missing of the child Priyanshu Raj Singh and also put the mobile number of the accused on surveillance for tracing his location. On 15.9.2017, PW-10 visited the school of the child and prepared the site plan Ex.PW-10/A of the place of occurrence. PW-10 further deposed that in the evening on 15.09.2016, he came to know about the location of the mobile number of the accused in Bihar through Nodal Officer of Idea Cellular Ltd. PW-10 formed a raiding team comprising of H.C Devender, constable Sunil and constable Shiyogi Ram and on 16.9.2016, he alongwith complaint Smt. Pooja Devi, her husband Sh. Mukesh Kumar and other police staff proceeded to Bihar by taking a train. PW-10 further deposed that during the journey, he came to know that the location of the given number was at Sheikhpura, Bihar and SHO of police station Mundka informed him that police of police station Sheikhpura had been informed about the facts and directed to proceed as per law.
Sessions Case No.22/2017 Page 42/5355. PW-10 further deposed that in the morning of 17.09.2017, he was informed telephonically by SHO, police station, Mundka that accused Pintu had been arrested by SI Mithlesh of police station Sheikhpur, Bihar and kidnapped child Priyanshu Raj Singh had been recovered. PW-10 alongwith constable Devender left the train at Barauni junction, Bihar, and went to police station Sheikhpura from the railway station. PW-10 further deposed that at police station Shiekhpura, SI Mithlesh produced the accused alongwith the kidnapped child. SI Mithlesh also produced articles recovered from the personal search of the accused i.e mobile phone, purse containing vising card, ATM card and identify card which were seized by PW-10 vide Ex.PW-5/B. PW-10 arrested accused Pintu Kumar vide arrest memo Ex.PW- 5/A. Accused made disclosure statement Ex.PW- 10/B. The child Priyanshu Raj Singh was recovered vide recovery memo Ex.PW-5/C. PW-10 obtained transit remand of the accused Pintu Kumar vide order Ex.PW-6/B. PW-10 also recorded statements of witnesses under Section 161 Cr.P.C and proceeded to railway station, Barauni junction Sessions Case No.22/2017 Page 43/53 with the accused and recovered child where the custody of the child Priyanshu Raj Singh was given to his parents vide receipt Ex.PW-1/B. PW- 10 further deposed that accused Pintu Kumar was taken to Delhi. On 19.9.2016, the school bag of master Priyanshu Raj Singh containing books and copies was recovered at the instance of accused Pintu Kumar from his house at Laxmi Vihar, Prem Nagar, Delhi. PW-10 seized the said bag vide seizure memo Ex.PW-10/C.
56. PW-10 further deposed that he got master Priyanshu Raj Singh medically examined and seized the sealed blood sample vide seizure memo Ex.PW-10/D. PW-10 got the statement under Section 164 Cr.PC of complainant Smt. Pooja Devi as well as master Priyanshu Raj Singh recorded before the learned M.M. vide the statement of complainant Ex.PA and original Ex.PA1, certified copy of statement of master Priyanshu Raj Singh Ex.PB and PB1. PW-10 got exhibited the application for recording statement of the accused Ex.PW-10/E and application for providing certified copies of the statements Ex.PW-10/F. PW-10 also recorded statement of Smt. Manju Bansal, class Sessions Case No.22/2017 Page 44/53 teacher of the master Priyanshu Raj Singh and collected the school record from MCD Primary School, Tikri Kalan, Delhi about the attendance and proof of age of the child. PW-10 also collected call detail record of the complainant and accused Pintu Kumar already Ex.PC ( collectively) and Ex.PD (collectively). PW-10 identified the accused Pintu Kumar and also identified the school bag Ex.PW-1 (collectively).
57. In his cross-examination, PW-10 stated that he had tried to contact the accused on his given mobile number on 14.09.2016 and 15.09.2016, however, it was found switched off. Further, he had not made call to the accused using the mobile phone of the complainant Smt. Pooja Devi (PW-1). PW-10 could not tell for how many times the complainant and the accused had made the telephonic conversation from 14.09.2016 to 16.09.2016. PW-10 had prepared the site plan of the place of occurrence on 15.09.2016 on the pointing out of the complainant. He had also made inquiry from class teacher of master Priyanshu Raj Singh. PW-10 further stated that he had put the mobile number of the complainant as well as of the Sessions Case No.22/2017 Page 45/53 accused on surveiliance during the investigation. On inquiry, the complainant had told PW-10 that during the telephonic conversation, the accused had told her that he was taking her son to Bihar, but he had not told the exact place.
58. In further cross-examination recorded on 6.9.2017, PW-10 stated that they had taken train to Bihar on 16.09.2016 at about 6 a.m. and during the journey, he was in contact with the complainant who used to inform him telephonically as and when she received call from the accused. Both PW-10 and the complainant were travelling in the same train, but in different coaches. PW-10 denied the suggestion that the complainant had told him about the exact location of the accused in Bihar and he had conveyed the said information to Police Station Sheikhpura. On further cross-examination, PW-10 stated that they were at some distance from Barauni railway station, when he received the information that the accused had been apprehended by the Bihar Police. PW-10 also informed the complainant in this regard. PW-10 further denied the suggestion that the complainant had told him about the accused being on friendly terms with her, her Sessions Case No.22/2017 Page 46/53 mother and her sister namely Amisha. He further denied the suggestion that the custody of son of the complainant was handed over by her to the accused voluntarily.
59. Constable Sunil (PW-11) deposed that he joined the investigation of the case and was a member of raiding team formed by SI Manoj Chahar, for rescue of kidnapped child from Bihar. He also deposed about the investigation, arrest of the accused Pintu Kumar and recovery of the child by SI Mithlesh Kumar of police station Sheikhpura and proceedings conducted by IO/SI Manoj Kumar. PW-11 witnessed disclosure statement Ex.PW- 10/B and seizure memo of school bag Ex.PW-10/C. PW-11 also identified the school bag Ex.P-1 (collectively).
60. In his cross-examination, PW-11 stated that on 16.09.2016, they had left for Bihar in the morning alongwith complainant Smt. Pooja Devi (PW-1) and her husband in the same train. Further, I.O was constantly making and receiving telephone calls during the journey and prior to reaching the Barauni railway station, I.O had told them that the train is to be deboarded at Barauni railway Sessions Case No.22/2017 Page 47/53 junction. On further cross-examination, PW-11 stated that from Barauni railway station, they used a private taxi for reaching police station Sheikhpura. Smt. Pooja Devi (PW-1), her husband and constable Shiyogi Ram had not accompanied them to police station Sheikhpura. Further, at the police station Sheikhpura, the accused was found in police lock-up and the kidnapped child Priyanshu Raj Singh was sitting in a room. S.I Mithlesh (PW-
6) and one chowkidar who had witnessed the recovery of the child were also present in the police station. PW-11 could not tell at what point of time, I.O informed the complainant about the recovery of child. He further stated that on 19.09.2016, at the time of recovery of bag, 5-7 public persons had gathered. He was not knowing if any public witness had signed the seizure memo of the bag. He further stated that no I.D card of the child was found inside the bag.
Analysis
61. In view of the above-mentioned testimonies of prosecution witnesses and the documentary evidence, it is established that ASI Daulat Singh (PW-9) recorded the statement Ex.PW-1/A of Sessions Case No.22/2017 Page 48/53 complainant Smt. Pooja Devi (PW-1) and endorsed the same. He had also given it to the Duty Officer for registration of the FIR in the present case. ASI Devender Singh (PW-5) and constable Sunil (PW-
11) joined the investigation with SI Manoj Kumar (PW-10), I.O of the case. They had also gone to Bihar alongwith complainant Smt. Pooja Devi (PW-1) and her husband Mukesh Kumar Singh (PW-4) and constable Shiyogi Ram. ASI Devender Singh (PW-5), Constable Sunil (PW-11) and SI Manoj Kumar (PW-10) had reached at police station Sheikhpura on 17.9.2016 in the morning where they met with SHO/SI Mithlesh Kumar (PW-6) who had already arrested and recovered the child Priyanshu Raj Singh and had brought them to the police station. The testimony of SI Mithlesh Kumar (PW-6) and Sunil Paswan (PW-
7) with regard to arrest of the accused and recovery of the child Priyanshu Raj Singh could not be controverted in any material terms by the learned Defence Counsel through their cross- examination. Both the accused and the recovered child were handed over by SI Mithlesh Kumar (PW-6) to SI Manoj Kumar (PW-10) with the case Sessions Case No.22/2017 Page 49/53 property i.e one mobile phone of Make KEN XIN DA K59 containing two SIM cards (Ex.P-2 collectively) and one brown colour purse containing Adhaar card, ESIC I. Card, PAN card, ATM cards of PNB and HDFC bank etc (Ex.P-3 collectively). Thereafter, SI Manoj Kumar (PW-
10) produced the accused in the local court and obtained two days transit remand of the accused vide order Ex.PW-6/B for taking the accused to Delhi. The child Priyanshu Raj Singh was handed over to his parents vide receipt Ex.PW-1/B. After reaching Delhi, on 19.09.2016, the accused led the police officials to his house number 461, in Gali No.-5, Laxmi Vihar, Prem Nagar, Delhi and from the first room situated on the ground floor, the accused produced one bag of black colour Ex.P-1 containing books and other articles bearing the name of child Priyanshu Raj Singh which was seized vide seizure memo Ex.PW-10/C. On 21.09.2016, PW-10 made an application Ex.PW-10/E before the court concerned for recording of statement of complainant Smt. Pooja Devi (PW-1) Ex.PA1 and the child Priyanshu Raj Singh (PW-3) Ex.PB1 under Section 164 Cr.P.C.
Sessions Case No.22/2017 Page 50/53The credit-worthiness of PW-5, PW-9, PW-10 and PW-11 also remained unshattered in their cross- examination.
Conclusion
62. Taking the entire facts and circumstances into consideration as discussed-above, in my considered opinion, the prosecution successfully established that the accused had taken the child Priyanshu Raj Singh, aged around 6 years, out of the keeping of lawful guardianship of his parents without their consent and thereby committed an offence punishable under Section 363 IPC. However, the essential ingredients for commission of offence under Section 364A IPC are not proved in the absence of any threat by the accused to cause death or hurt to the child Priyanshu Raj Singh. No evidence could be led by the prosecution to show that any reasonable apprehension arose in the mind of either Smt. Pooja Devi (PW-1) or Sh. Mukesh Kumar Singh (PW-4), parents of the child Priyanshu Raj Singh (PW-3) from the conduct of the accused that their child may be put to death or any hurt may be caused to him. As observed earlier, the child Priyanshu Raj Singh (PW-4) was Sessions Case No.22/2017 Page 51/53 treated well by the accused and was never threatened in any manner. Even Smt. Pooja Devi (PW-1) or Sh. Mukesh Kumar Singh (PW-4) never expressed any such apprehension at the time of recording of statements under Section 161 Cr.P.C, under Section 164 Cr.P.C or while deposing in the court.
63. It was laid down by the Apex Court in Anil @ Raju Namdev Patil v. Administration of Daman & Diu, (2006) 13 SCC 36 and Vishwanath Gupta v. State of Uttaranchal, JT 2007 5 SC 48 that to make out the offence punishable under Section 364A IPC, firstly, there has to be an abduction or kidnapping and thereafter, a threat or an apprehension caused by the conduct of the accused that if the demands raised were not met, the victim would be hurt or put to death. As laid down in Munna Saxena v. State, 2016 SCC online DEL 2569, section 364A IPC must receive a strict interpretation as consequences are severe, the sentence prescribed being either death or imprisonment for life. This was also the ratio as laid down in Sartaz @ Sonu (supra) relied upon by the learned Defence Counsel.
Sessions Case No.22/2017 Page 52/5364. In the afore-discussed facts and circumstances, in my considered opinion, the prosecution miserably failed to prove the essential ingredients for commission of offence punishable under Section 364A IPC. However, commission of offence punishable under Section 363 IPC is clearly made out by the accused. The points for determination no.1 to 3 are decided accordingly.
65. I, accordingly, acquit the accused Pintu Kumar Son of Shri Umesh Das, of the charge for the offence punishable under Section 364A IPC and convict him for the offence punishable under Section 363 IPC.
66. Let the convict be heard on the point of sentence.
(Pronounced in the open (Kuldeep Narayan) Court on 10.10.2017 ). Addl. Sessions Judge (Pilot Court) West : Court No. 33: Tis Hazari Courts Delhi Sessions Case No.22/2017 Page 53/53