Delhi District Court
State vs . Vishnu @ Anr. on 30 July, 2018
IN THE COURT OF MM08 (CENTRAL DISTRICT)
TIS HAZARI COURTS COMPLEX, DELHI.
Presiding Officer: Dinesh Kumar, DJS.
IN THE MATTER OF :
State Vs. Vishnu @ Anr.
FIR No. 628/2017
PS : NDRS
U/s 363A/34 IPC
CNR No. DLCT020208302017
Date of Institution : 01.09.2017
Date of reserving of order : 28.06.2018
Date of Judgment : 30.07.2018
J U D G M E N T
1. Serial No. of the case : 10262/2017
2. Name of the Complainant : Sh. Asit Kumar Nayak
3. Date of incident : 20.07.2017
4. Name of accused persons :
(1) Vishnu W/o Sh. Suraj
R/o H. No. 285, Madangir, Delhi
(2) Geeta W/o Venkatesh
R/o H. No. 285, Madangir, Delhi
5. Offence for which chargesheet
was filed : 363A/34 IPC.
6. Offence for which charge
has been framed : 363A/34 IPC, & 76 JJ
Act.
7. Plea of accused : Not guilty
8. Final Order : Acquitted
9. Date of Judgment : 30.07.2018
Present : Sh. Santosh Kumar, Ld. APP for the State.
Sh. Paramjeet, Ld. Counsel for accused.
FIR No. 628/17 State Vs Vishnu & Anr Page 1 of 19
PS : NDRS
BRIEF REASONS FOR ORDER:
1.Ms. Vishnu and Ms. Geeta, the accused herein, have been chargesheeted for the offence punishable under Section 363A/34, the Indian Penal Code (45 of 1860) (hereinafter referred to as "IPC").
2. The case of the prosecution is that on 20.07.2017 at about 7:30 a.m., child Arpita, daughter of complainant Asit Kumar Nayak, went missing from platform no.3 of NDRS. A complaint was made on the basis of which present FIR was registered. She was recovered from the possession of the accused persons. The accused persons had kidnapped the minor child for using her for the purpose of begging. After completion of investigation final report was prepared by the IO and the accused persons were chargesheeted for the above mentioned offence punishable under Section 363A/34 IPC.
3. After perusing the record, cognizance was taken by the Court. The accused were produced before the Court from J/C. Compliance of Section 207, Criminal Procedure Code, 1973 (hereinafter referred to as 'Cr.P.C.) was done. After hearing the parties, charge for the offence punishable under Section 363A/34 IPC and Offence FIR No. 628/17 State Vs Vishnu & Anr Page 2 of 19 PS : NDRS punishable under Section 76 of the Juvenile Justice (Care and Protection of Children) Act, 2015 was framed against the accused to which they pleaded not guilty and claimed trial.
4. The prosecution has examined as many as 13 witnesses to prove its case against the accused.
5. PW1 Asit Kumar Nayak is the complainant. He has deposed that on 20.07.2017, he was coming from Firozpur to Delhi in Punjab Mail. The train had stopped at platform no.3 at NDRS at about 5 to 5:30 a.m. He was sitting at the platform no.3 with his wife and his daughter named Arpita. It was raining. He handed over his daughter to his wife and he started adjusting his baggages. Soon after when he saw towards his wife, he saw that his daughter was not present with his wife. Then, he made complaint to the police. CCTV footage was checked. However, his daughter could not be traced. Finally, he made a written complaint which is Ex.PW1/A. On the same day in the evening, the police official called him at PS. When he reached at the police station, he saw that his daughter was in custody of police officials. He remained in the police station till morning. The police official had recorded his statement in this regard on next day also. The daughter was handed over to him. She was further FIR No. 628/17 State Vs Vishnu & Anr Page 3 of 19 PS : NDRS medically examined in the hospital. He had not seen the accused persons committing the offence and her daughter was found by the police officials.
6. The witness was crossexamined by Ld. APP with the permission of the Court. The witness admitted that the police officer had prepared the site plan at his instance, which is Ex.PW1/B. He also admitted that the police had also prepared the recovery memo of his daughter and other children which are Ex.PW1/C and Ex. PW1/D. The photograph of the child and the notice are marked Z2. He has admitted that the disclosure statement which are Ex. PW1/E and Ex. PW1/F were recorded in his presence. He has also admitted that the accused were arrested vide memo Ex. PW1/D and Ex. PW1/F and that their personal search were conducted vide memo Ex. PW1/I and Ex.PW1/J. He has also admitted that the pointing out memo of the spot was prepared by the police official, which are Ex.PW1/K and Ex.PW1/L. He had handed over the birth certificate of victim Arpita Nayak to the police, which is Ex.PW1/M.
7. PW2 ASI Hari Ram, RPF, NDRS has deposed that on 29.07.2017, he had provided the CCTV footage dated 20.07.2017 at the request of ASI Shibu. He had handed over the CCTV footage to IO on 29.07.2017. IO FIR No. 628/17 State Vs Vishnu & Anr Page 4 of 19 PS : NDRS had seized the same vide seizure memo Ex.PW2/A. He had also issued certificate U/s 65 (B) of Indian Evidence Act qua CC TV footage.
8. PW3 W/HC Anna Gloria was the Duty Officer, who had registered the FIR No. 628/17 PS NDRS which is Ex.PW3/1. She made endorsement on the rukka which is Ex.PW3/2. She had issued the certificate under Section 65 B of Indian Evidence Act, which is Ex. PW3/3.
9. PW4 HC Ramesh Chand is the police official, who had joined the investigation with the IO on 21.07.2017. He has deposed that on the said date victim child Arpita Nayak and three other children were handed over to Kanika and Ram Prashad, who were officials of Salam Balak Trust vide memo Ex. PW4/1. They took all the children to RML Hospital for this medical. Custody of child Arpita was handed over to her father. Other children was directed to be sent Children Home, Mandir Marg.
10. PW5 Mala is the relative of the accused. She has deposed that accused persons were her sister and that they had been residing in her locality on rent. The witness was crossexamined by Ld. APP with the permission of the Court. She denied the suggestion that the accused were begging in public streets and they were using their children for the said purpose.
FIR No. 628/17 State Vs Vishnu & Anr Page 5 of 19PS : NDRS
11. PW6 ASI Pramod Kumar is the police official, who had joined the investigation with the IO ASI Shibu. He has deposed that on 21.07.2017 the IO had received a secret information regarding the victim child. That secret informer had also informed that two ladies were seen at Minto bridge Chowk alongwith victim child and might be apprehended if raided on time. Thereafter, both of them alongwith WCt. Saroj and the father of victim child had reached at Minto Bridge. They saw that victim child was in the lap of accused Geeta. Accused Vishnu was also with her. When accused Geeta had seen the police party, she immediately handed over the victim child to accused Vishnu. The father of victim child had identified his daughter. Four other children were also in their possession. During the course of investigation, it was found that the aforesaid four children were children of the accused persons. The IO had prepared the site plan in his presence. The IO had prepared the recovery memo of children in his presence. The accused were arrested and personally search in his presence. The disclosure statement were also recorded in his presence. Pointing out memo were also prepared in his presence.
12. PW7 Wct Saroj is the police official, who had joined the investigation with the IO. She has deposed FIR No. 628/17 State Vs Vishnu & Anr Page 6 of 19 PS : NDRS similar to PW6 ASI Pramod Kumar. She had seen the child with the accused persons. The complainant had identified her daughter. She had conducted personal search of both the accused persons.
13. PW8 Khalil Ahmed is the neighbor of the accused persons. He has deposed that the accused had been residing in the same gali for last two years.
14. PW9 Ct. Vipin Kumar is the official of the RPF, who produced the CCTV footage register containing entry of footage of Camera no. 75 dated 20.07.2007 from 7:40 a.m., to 8:25 a.m. The entry in the register is Ex. PW9/A (OSR).
15. PW10 Kanika Rajput is the social worker at Salam Balak Trust (NGO). She has deposed that on 21.07.2017, she alongwith subordinate staff namely Ram Prashad had reached at Minto Bridge Chowk. Four children were handed over to her. Among the aforesaid children, one was rescued child named Arpita. Other children were of the accused persons. They had taken the children at PS : NDRS. Parents of victim child were present in the police station. Thereafter, children were taken to Kalawati Hospital where their medical examination was done. Children were produced before CWC Mayur Vihar. At the direction of CWC victim child was handed over to FIR No. 628/17 State Vs Vishnu & Anr Page 7 of 19 PS : NDRS her parents and other three children were sent to Shelter home. She had seen the accused persons at the Railway Station area who used to beg there.
16. PW11 Narender Kumar Dwivedi is a public person. He has deposed that he used to run a milk shop at platform no.2/3 of NDRS for last five years. He had seen that both the accused persons were regularly begging within the area of NDRS. They used to keep small child in their lap during the begging.
17. PW12 Retd. SI Ashok Kumar is the second IO. He had obtained one day PC remand of the accused persons.
18. PW13 ASI Shibu V. R is the main IO of the case. He has deposed that on 20.07.2017 the complainant Ashit Nayak had come at PS and reported about missing of his daughter at platform no.3. He recorded his statement, which is Ex. PW1/A. He prepared tehrir on the complaint from point X to X1. He took the photographs of the child and got prepared pamphlets, which were affixed on different places. Photo of the child was also uploaded on zipnet. Secret informer informed him that the kidnapped girl alongwith two ladies were coming towards Minto Bridge. SHO formed a raiding party. Raiding party saw that the accused persons you were present and one of lady FIR No. 628/17 State Vs Vishnu & Anr Page 8 of 19 PS : NDRS was having a child in her hands. The ladies were having five children in their custody. Accused Vishnu was having the kidnapped child in hand. Both were apprehended with the help of W. Ct. Geeta. They were arrested. Their personal search was conducted. The kidnapped child was handed over to her parents vide handing over memo Ex. PW4/I. The other children were sent to Shelter Home as per order of CWC. He obtained the CCTV footage vide seizure memo Ex. PW2/A. The CD is Ex.PW13/A. Photographs are Ex. PW13/B. He also seized the birth certificate of kidnapped child vide seizure memo Ex. PW1/M. Attested copy of birth certificate is Ex.PW13/F. DD No.19 B dated 21.07.2017 regarding the handing over of the kidnapped child and departure is Ex.PW13/G. Another DD No. 18B dated 21.07.2017 regarding handing over the other recovered child is Ex.PW13/H.
19. The witness were cross examined. The prosecution evidence was closed.
20. Both the accused were separately examined under Section 313 Cr.P.C r/w Section 281 Cr.P.C. Substance of incriminating evidence was put to them. They denied all the incriminating evidence. They would state that they were innocent and falsely implicated. They used to sell towels on the platform. The police officials had FIR No. 628/17 State Vs Vishnu & Anr Page 9 of 19 PS : NDRS demanded money for said purpose. they did not make the payment. therefore, they were falsely implicated. They had never begged on the platform. They did not see the child of the complainant.
21. The accused did not lead any defence evidence. Therefore, matter was fixed for final arguments.
22. Ld. APP for the State would argue that the prosecution has proved its case beyond reasonable doubts. It has been proved that the accused persons had kidnapped the victim minor child. It has also been proved by the evidence that the accused persons used to beg on the platform. They were using the child for the purpose of begging. Hence, the prosecution has proved all the ingredients of the offences punishable under Section 363A/34 IPC and Section 76 JJ Act, and the guilt of the accused persons has been proved beyond reasonable doubts. Hence, it is prayed, the accused may be convicted.
23. Ld. Defence counsel, on the other hand, would argue that the prosecution has failed to prove its case against the accused beyond reasonable doubts. There are various contradictions in the testimonies of the witnesses of the prosecution. None of the prosecution witness has been able to prove that the accused person had kidnapped the victim. The prosecution has contended that the victim FIR No. 628/17 State Vs Vishnu & Anr Page 10 of 19 PS : NDRS was recovered from the accused persons in the presence of the complainant. However, the complainant, in his evidence, has stated that his daughter was not recovered in his presence. Thus, it is shown that the police officials had prepared false documents. There is no independent public witness of the recovery of the child from the accused persons. There are only police officials who have falsely deposed against the accused persons to implicate them. Their testimonies are full of lies. They are not trustworthy witnesses. Further, there is nothing on record to prove that the accused persons were beggars or that they had kidnapped the child and that the child was kidnapped to use for the purpose of begging. Hence, it is prayed, the benefit of doubts may be given to the accused and they may be acquitted.
24. I have heard the rival submissions and carefully perused the material available on record.
25. In a criminal case the burden is on the prosecution to prove its case beyond reasonable doubts before the accused is asked to put her defence.
26. In the present case, the accused have been charged for the offence punishable under Sections 363A/34, IPC. Section 363A, IPC provides punishment for kidnapping any minor or, not being the lawful guardian of FIR No. 628/17 State Vs Vishnu & Anr Page 11 of 19 PS : NDRS a minor, obtains the custody of the minor, in order that such minor may be employed or used for the purpose of begging, or for maiming any minor in order that such minor may be employed or used for the purposes of begging. The Section provides that where any person, not being the lawful guardian of a minor, employs or uses such minor for the purposes of begging, it shall be presumed, unless the contrary is proved, that he kidnapped or otherwise obtained the custody of that minor in order that the minor might be employed or used for the purposes of begging. The Section defines begging as (i). soliciting or receiving alms in a public place, whether under the pretence of singing, dancing, fortunetelling, performing tricks or selling articles or otherwise; (ii). entering on any private premises for the purpose of soliciting or receiving alms; (iii). exposing or exhibiting, with the object of obtaining or extorting alms, any sore, wound, injury, deformity or disease, whether of himself or of any other person or of an animal; (iv) using a minor as an exhibit for the purpose of soliciting or receiving alms; The Section defines 'minor', in the case of a male, a person under sixteen years of age; and, in the case of a female, a person under eighteen years of age.
FIR No. 628/17 State Vs Vishnu & Anr Page 12 of 19PS : NDRS
27. Section 359, IPC provides that kidnapping is of two kind, i.e., kidnapping from India and kidnapping from lawful guardianship. Section 360 IPC defines kidnapping from India while Section 361, IPC defines kidnapping from lawful guardianship. In the present case there is no allegation of the kidnapping from India. The relevant provision is Section 361, IPC. The main ingredients of Section 361, IPC are:
1. There must be taking or enticing of a minor or of a person of unsound mind;
2. the minor must be under 16 years of age, if a male or under 18 year of age if female;
3. the taking or enticing must be out of the keeping of the lawful guardian of the minor or person of unsound mind; and
4. the taking or entice must be without the consent of such guardian.
28. The first ingredient of kidnapping is taking or enticing of minor. 'Taking' implies neither force nor misrepresentation. If a girl of less then 18 years, or a boy of less than 16 years of age, is taken away from the keeping of her/his lawful guardian, the offence of kidnapping is established. The prosecution must show that FIR No. 628/17 State Vs Vishnu & Anr Page 13 of 19 PS : NDRS the accused took some active part in the child leaving his lawful guardians custody.
29. Section 76 of the Juvenile Justice (Care and Protection of Children) Act, 2015 also provides punishment for employing child for begging. It provides that whoever employs or uses any child for the purpose of begging or causes any child to beg shall be liable for punishment.
30. In the present case, it is not in dispute that baby Arpita was minor on the date of the alleged incident. Her birth certificate is on record which is Ex.PW13/F. She was only 2 years and 4 months old at the relevant time. The prosecution is required to prove beyond reasonable doubts that the accused persons had kidnapped, as defined under Section 361, IPC, the child Arpita. The prosecution can also prove its case by proving beyond reasonable doubts that the accused had been using the child for the purposes of begging. In such case the Court shall presume that they kidnapped or otherwise obtained the custody of that minor in order that the minor might be employed or used for the purposes of begging. Thereafter, the burden would be on the accused persons to prove that they had not kidnapped the minor Arpita.
31. In the present case, as the record would reveal, FIR No. 628/17 State Vs Vishnu & Anr Page 14 of 19 PS : NDRS no one had seen the accused persons taking the child from the platform. In the CCTV footage also, the child was seen going alone in one direction. However, the prosecution has alleged that accused the child was recovered from the possession of the accused persons. The case of the prosecution is that the accused persons had been using the child Arpita for the purpose of begging.
32. It is the case of the prosecution that the child had been recovered from the accused persons in presence of the complainant / father of the child. The record would reveal that the child went missing on 20.07.2017 at about 5.30 a.m. The finding memo/recovery memo of the child are Ex.PW1/C and Ex.PW1/D. As per these memo, the child was recovered next day, on 21.07.2017 at about 8.00 a.m. The memo also contain that the child was recovered from the accused persons at Minto Bridge at the instance of a secret informer. The memo are prepared by ASI Shibu. They bear signatures of complainant Ashit Nayak, ASI Pramod Kumar and Ct. Saroj as witnesses of the recovery.
33. The father of the child Arpita, complainant Ashit Nayak, has been examined as PW1. He has deposed that on the same day, when his daughter went missing and he had given complaint to the police, in the evening he was informed by the police that the child had been FIR No. 628/17 State Vs Vishnu & Anr Page 15 of 19 PS : NDRS recovered. He has stated in his examination in chief that he had not seen the accused persons committing the offence and his daughter was traced by the police officials. He has stated in evidence that when the child was not found at the railway plat form, he had seen the CCTV footage of the platform and in the CCTV footage, he saw that the child was going alone on one of the stairs of the platform. The CCTV footage has placed by the prosecution. However nothing has come in the CCTV footage which could prove that any of the accused was taking the child or any accused was seen with the child in any portion of the platform or at the staircase. In his cross examination he has stated that he had seen his daughter in the police station and that he was not part of any raiding party. He has also stated that he had not seen the accused persons at any point of time and that he had never went to Minto bridge.
34. Thus, the testimony of PW1 would leave no doubts that he was not the part of the raiding team and that his daughter was not recovered by the police officials in his presence. It also shows that his signatures were taken on this documents after preparing them at the police station and not at the Minto Bridge as mentioned in the document. It is also noteworthy that the complainant has FIR No. 628/17 State Vs Vishnu & Anr Page 16 of 19 PS : NDRS stated that in the evening of 20.07.2017 itself he was informed by the police officials that they had found his daughter. When he reached at the Police station, he found his daughter there. However, as per memo Ex.PW1/C and Ex.PW1/D, the child was recovered on 21.07.2018 at 8.00 a.m. Thus, it is shown by the defence that the documents Ex.PW1/C and Ex.PW1/D are false documents as they do not show the correct sequences and timing of the facts mentioned therein. There is no reason to doubt the testimony of the complainant as why he would lie to save the persons who had kidnapped his daughter.
35. There is no other public witness of the recovery of the child. Other witnesses mentioned on the memo are police officials. In the circumstances mentioned hereinabove, it is possible that they might have also signed the documents being fellow police officials. In any case, the material on record, as discussed hereinabove, raises reasonable doubts on the recovery of the child from the accused persons.
36. Further, the IO/PW13, ASI Shibu, has deposed that when the accused persons were apprehended, they were having five children with them and one of the child was the child of the complainant. However, PW10, Kanika Rajput, an NGO worker, has stated when she reached at FIR No. 628/17 State Vs Vishnu & Anr Page 17 of 19 PS : NDRS the spot, only four children were present and out of four children, three children were of the accused persons and one was the child of the complainant. There is contradiction in the statement of prosecution witnesses as regards as to how many children were found with accused persons at the time of their arrest. The IO states that there were 5 children however the NGO official has stated that there were only four children. In any case, PW10 has stated that the children were already rescued before she reached there. Thus, she is not a witness of the recovery of the victim child.
37. As already discussed, the father of child has not supported the case of prosecution. In view of the contradictory statements of the witnesses, this Court is of the view that the recovery of the child from the accused persons is doubtful. Therefore, I hold that the prosecution has failed to prove beyond reasonable doubt that the accused persons had taken away or enticed the child to go along with them or that child was recovered from their possession. Therefore, prosecution has failed to prove the ingredients of offences punishable under section 363A IPC. Even ingredients of offence punishable under Section 363 IPC are not proved by the prosecution. Similarly, for the same reasons, ingredients of offence punishable under FIR No. 628/17 State Vs Vishnu & Anr Page 18 of 19 PS : NDRS Section 76 of the Juvenile Justice (Care and Protection of Children) Act, 2015, are also not proved against any of the accused. Benefit of doubts is given to the accused as per law. They are acquitted of the offences alleged.
38. The accused have already furnished bonds under Section 437A IPC, with one surety each along with photographs and copies of address proofs.
Pronounced in the open Court on (Dinesh Kumar)
th
this 30 day of July 2018 MM08 (Central)
Tis Hazari Courts, Delhi.
FIR No. 628/17 State Vs Vishnu & Anr Page 19 of 19
PS : NDRS