Delhi District Court
State vs . Navi Hussain on 23 October, 2021
IN THE COURT OF MS. ALKA SINGH
METROPOLITAN MAGISTRATE-08
(SOUTH-WEST), DWARKA COURTS, DELHI
IN THE MATTER OF :
State Vs. Navi Hussain
FIR No. 1261/15
PS : Uttam Nagar
U/s 363 IPC
Date of Institution : 14.10.2016
Date of Judgment : 23.10.2021
JUDGMENT
1. Serial No. of the case : 432949/2016
2. Name of the Complainant : Bablu S/o Shankar Mandal
R/o B-43 Vidya Vihar, Uttam
Nagar, Delhi.
3. Date of commission of offence : 26.09.2015
4. Name of accused person : Navi Hussain
S/o Sh. Mohbbat Ali
R/o Village Semra Maharaj,
PS Purendra Pur, Tehsil
Farenda, Distt. Maharaj Ganj,
Uttar Pradesh
5. Offence charged : U/s 363 IPC
6. Plea of accused : Not guilty
7. Final Order : CONVICTION
State Vs. Navi Hussain
FIR No. 1261/15 P.S. Uttam Nagar
Judgment dated 23.10.2021
Page No. 1 of 12
BRIEF REASONS FOR ORDER:
1. The accused has been chargesheeted for committing offences punishable under Section 363, Indian Penal Code (45 of 1860) (hereinafter referred to as "IPC").
2. It has been alleged by the prosecution that on 26.09.2015, one girl namely Preeti, aged 15 years was kidnapped by accused Navi Hussain, who was the neighbour. Statement of complainant (brother of victim) was recorded upon which FIR was registered and statements of witnesses were also recorded. Victim was found by the complainant on 28.09.2015 alongwith the accused at Ghaziabad Railway Station. Necessary investigation was conducted. Accused was accordingly taken into custody.
3. After conclusion of investigation, the present chargesheet was filed against the accused u/s 363 IPC.
4. On receipt of chargesheet, Cognizance of offence was taken and accused was summoned to face trial. Copy of the chargesheet alongwith all annexures was supplied to the accused in terms of Section 207 Cr.P.C.
5. After giving opportunity to state as well as accused for making submissions on charge, a charge for offence u/s 363 IPC was framed against the accused on 25.02.2017, to which he pleaded not guilty and claimed trial.
6. Prosecution examined eight witnesses to prove its case.
7. ASI Bajrang Singh has been examined as PW-1. He has deposed that on 26.09.2015, he was working as DO at PS Uttam Nagar and recorded DD No. 55A and FIR on the basis of rukka State Vs. Navi Hussain FIR No. 1261/15 P.S. Uttam Nagar Judgment dated 23.10.2021 Page No. 2 of 12 presented by Ct. Mahesh Pratap. Original DD register was also produced and copy of the relevant entry was exhibited as Ex.PW1/A (OSR). In his cross-examination, only a suggestion regarding non- registration of the FIR was put to him which was denied by him.
8. As PW-2 the prosecution examined Ms. Seema Verma, Incharge, HDFC Primary School, she stated that she had issued certificate dated 30.09.2015 and as per the record available in the school, the date of birth of the Preeti Kumari D/o Sh. Shankar Mandal is 25.12.1998. The same was exhibited as PW2/A. She also produced original admission register, which corroborated the date of birth of the victim as above. The relevant entry was exhibited as Ex.PW2/B (OSR). The admission forms were exhibited as Ex.PW2/C. The defence counsel did not cross-examine the witness despite opportunity.
9. Complainant Bablu was examined as PW-3, who stated that he has been residing at the given address alongwith his family for past 8- 10 years and the incident occurred in September'15 when his sister Preeti (victim) had gone to the house of his neighbour namely Israil at around 12.00-1.00 p.m, who also reside with his family and accused Navi also lived there. Thereafter, she disappeared and he went to the police station and told his suspicion about accused Navi Hussain. His complaint was exhibited as Ex.PW3/A. He also stated that 2 days after the said incident, his brother Ankit received one phone call that his sister Preeti was found at New Delhi Railway Station and he alongwith Ankit and some other persons reached there, however, the State Vs. Navi Hussain FIR No. 1261/15 P.S. Uttam Nagar Judgment dated 23.10.2021 Page No. 3 of 12 train had already left but he saw Preeti inside the train. He further stated that he went to Ghaziabad Railway Station and got Preeti and accused Navi Hussain to deboard the train and handed over accused Navi Hussain to Custom officials at Railway Station and also informed the officials of Police Station Uttam Nagar. Both the accused and the victim were then brought to the police station by the police officials of police station Uttam Nagar. In his cross- examination, he specified the date of the incident as 29.09.2015 and stated that when he returned from his duty at around 2.00 p.m., his sister Niki told him that victim Preeti was not at home. He stated that he does not remember when he went to police station but on 01.10.2015, he received a phone call from Ankit that Preeti would be at New Delhi Railway Station and he immediately left. He specified that he used Metro to go to the Railway Station and it took him 30 minutes to reach there at 8.00 p.m. He further stated that upon reaching the Railway Station, he got in line to inquire about the platform from which train to Gaurakhpur would be leaving and he reached Platform No. 13 and searched all the coaches to find his sister. That, when he boarded the train, the train had already left the platform and he asked his sister Preeti to de-board the train as it had just started. Thereafter, all the adverse suggestions implying that Preeti herself called accused Navi on the date of incident to complaint about her mother and to take her away from her home were denied by the witness.
10. Victim Preeti was examined as PW4, who stated that her State Vs. Navi Hussain FIR No. 1261/15 P.S. Uttam Nagar Judgment dated 23.10.2021 Page No. 4 of 12 parents reside in Vidya Vihar and she has six brothers and sisters and that she has studied till class 8th. She also identified the accused in the Court and stated that he used to come to the house of his relatives who were their neighbour. She further stated that at that time she was studying in school and did not know the accused, however, he used to stare at her and follow her till her school. That, on the date of incident, accused persuaded her by promising money and other things to go with him. She stated that he took him to some unknown place and from there she was taken to his village. She further testified that when her family came to know, they complained in the police and when they were going in train, her family came to the Station and her brother Bablu took her to the police station. She avowed that police threatened her that she should take all the responsibility for the matter and she acted accordingly and gave her statement to the police personnel. She stated that police officers asked her to do this otherwise life of the accused would be ruined. She also stated that she gave her statement before a Judge which is Ex.P1.
At the stage of her cross-examination, she stated that presently she is 19 years old. She further enunciated that she does not remember the month or time when she left with the accused but it was in forenoon around Bakrid. That she did not tell anybody that accused was following her and she left with the accused for 2-3 days at a place that she does not remember. She said that she did not meet anybody at New Delhi Railway Station and she was also not sure regarding whether her brother met her at Ghaziabad or Moradabad Railway State Vs. Navi Hussain FIR No. 1261/15 P.S. Uttam Nagar Judgment dated 23.10.2021 Page No. 5 of 12 Station but later on stated that it was Ghaziabad station. She was also unsure about the time when her brother met her at the station and that she was taken to the police station and from there for her medical examination. The witness further stated that her statement Ex.P1 recorded before the Magistrate was not true and that same was given under pressure from the police officials. She further illustrated that she was coming back from the school and after meeting with the accused she went to her house, that after half an hour she came down from her house, when nobody was there and again met accused on the street near her house. She stated that accused asked her to go with him after offering her money and she went with him. Thereafter, the witness denied all the suggestions implying the innocence of the accused.
11. PW5 and PW6 were only formal witnesses, who got the medical examination of the witness conducted and got the FIR registered on he basis of tehrir respectively.
12. Ankit, brother of the victim was examined as PW7, who stated that his sister had gone missing on 28.09.2015, one neighbour whose name he did not know, called him on phone and informed that his sister was leaving by a train from New Delhi Railway Station. He further stated that his brother with two-three other boys went to New Delhi Railway Station and made their sister to get down at Ghaziabad Railway Station. He also stated that he called at the police station and informed them that his sister has been found and he also alongwith police officers went to Ghaziabad Railway Station, from where they all were brought to the police station Uttam Nagar wherein he gave his State Vs. Navi Hussain FIR No. 1261/15 P.S. Uttam Nagar Judgment dated 23.10.2021 Page No. 6 of 12 statement to the police. In his cross-examination, he stated that he does not remember the date of incident, however, he was informed about the missing of his sister by some passerby and that when he reached home, his brother Bablu had already left for the police station. He further testified that he did not go to the police station at that time and did not have any suspicion about the accused but he was told that the accused might be involved. He also stated that he knew the accused as he used to live in his neighbourhood and did not have any knowledge regarding friendship between her sister and the accused. Later on he stated that he became suspicious about the accused as he was also missing from his home. He stated that he does not have much knowledge about the accused or his family and on the next date he went to the Railway Station in search of his sister and stayed there from 10 a.m to 3 p.m. It was also stated that he does not remember the date on which he got the information that his sister could be found at New Delhi Railway Station. He also denied all the suggestions having adverse inferences.
13. ASI Jeet Ram was examined as PW-8 and stated that on 26.09.2015, complainant Bablu got the FIR registered and he prepared the rukka Ex.PW8/A. Further that on 28.09.2015, Ankit told him that his sister was found with accused Navi Hussain in a train which had left New Delhi Railway Station and that his brother had caught hold of her at Ghaziabad Railway Station, where-after he alongwith Ct. Rajbir and Ankit went there and met accused Navi Hussain (who was present in the court and was identified by the witness), Preeti, Bablu and his State Vs. Navi Hussain FIR No. 1261/15 P.S. Uttam Nagar Judgment dated 23.10.2021 Page No. 7 of 12 friends. From there they were all taken to the PS Uttam Nagar and there accused was interrogated. During his evidence, all the documents prepared by him were exhibited. In his cross-examination, nothing of significance came out.
14. Since, no other witness was examined by prosecution, hence, the PE was closed and statement of accused was recorded under Section 313 Cr.P.C. to allow him to explain the incriminating circumstances appearing in evidences against him wherein it was stated by the accused that he had been falsely implicated in the present case and denied all the allegations by stating that all the witnesses are interested witnesses who have deposed falsely, in actuality he and victim Preeti were friends since childhood.
15. Since the accused chose not to lead any evidence in his defence, therefore, the matter was adjourned for final arguments.
16. Final arguments were thereafter heard on behalf of state as well as the accused.
17. It is submitted by Ld. APP for State that accused has somewhat admitted the accusation and that his statement recorded U/s 313 Cr.PC wherein he stated that the witnesses were interested witnesses could not be proved. Ld. APP further argued that offence U/s 361 IPC is offence against guardianship and victim is only a witness in this case and therefore her statement U/s 164 Cr.P.C could not be considered and moreover ignorance of law is no excuse as the victim was minor and she was misled by the accused. Accused should not have taken her out of the custody of her parents and here meaning of enticement State Vs. Navi Hussain FIR No. 1261/15 P.S. Uttam Nagar Judgment dated 23.10.2021 Page No. 8 of 12 should be enhanced to convict the culprit because such kind of offences are being committed in Delhi frequently. He also argued that rights of guardian should be protected and a girl child needs to be protected from abduction.
18. Per contra, it was argued by the defence counsel that the victim and accused are well acquainted with each other and victim had fought with her mother and therefore, she herself approached to the accused for taking her away, but the accused counseled her and then only agreed to take her. He impressed upon the statement of the victim recorded U/s 164 Cr.P.C wherein she has stated that she had left on her own. Counsel has also argued that accused has no previous involvement. Defence counsel also rebutted the arguments raised by the Ld. APP that accused did not influence the victim rather it was the victim who approached the accused and there was no criminal intention on the part of the accused, to which Ld. APP submitted that mens rea in such cases cannot be considered.
19. I have carefully considered the submissions made on behalf of the parties and have perused the case file meticulously.
20. Now this court shall appreciate the evidences one by one in order to decide whether the prosecution has been successful in proving its case.
21. For convicting a person for an offence U/s 363 IPC, it has to be proved that a minor male under the age of 16 years or a female under the age of 18 years or any person of unsound mind must have been taken away or enticed out of the keeping of the lawful guardian State Vs. Navi Hussain FIR No. 1261/15 P.S. Uttam Nagar Judgment dated 23.10.2021 Page No. 9 of 12 without the consent of such guardian.
22. It is already renowned and recognized that section 361 IPC which illustrates the offence of kidnapping is a strict liability offence that is to say in such cases a defence of absence of required mens rea cannot be pleaded.
23. It has been well established in catena of judgments particularly in the age old case of R Vs Prince wherein the defendant was convicted under a statute making it unlawful to take any unmarried girl under the age of 16 years out of the possession and without the consent of her parents. Although the girl taken by defendant was 14 years old, she had told the defendant and the defendant reasonably believed that the girl was 18 years and it was held that where a statute is silent as to the mens rea required to make the act a crime, the Court is not bound to need a requirement of mens rea into the statute.
24. In a very recent judgment Anversinh Vs State of Gujrat (2021) 3 SCC 12, the Hon'ble Supreme Court of India further illustrated that "A perusal of section 361 IPC shows that it is necessary that there be an act of enticing or taking, in addition to establishing the child's minority and care/keep of a lawful guardian. Such enticement need not be direct or immediate in time and can also be through subtle actions like winning over the affection of a minor girl. It was further held that "A bare perusal of the relevant legal provisions, as extracted above, show that the consent of the minor is immaterial for purposes of section 361 IPC. Indeed, as borne out through various other provisions in IPC and other laws inter alia, State Vs. Navi Hussain FIR No. 1261/15 P.S. Uttam Nagar Judgment dated 23.10.2021 Page No. 10 of 12 minors are deemed incapable of giving lawful consent. Section 361 IPC, particularly, goes beyond this simple presumption. It bestows the ability to make crucial decisions regarding a minor's physical safety upon his/her guardians. Therefore, a minor girl's infatuation with her alleged kidnapper cannot by itself be allowed as a defence, for the same would surreptitiously undermining the protected essence of the offence of kidnapping.
25. From the above, it has now become abundantly clear that the arguments raised and propositions advanced by the defence counsel insinuating the exoneration of the accused cannot be sustained. Particularly, in view of the fact that age of the victim, she being a minor, is not in dispute. Further, the fact of her minority has also been authenticated by the documents produced by PW2 i.e Ex.PW2/A and Ex.PW2/B (OSR).
26. The only glitch which remains is, that the victim in her statement U/s 164 Cr.P.C stated that she had herself gone with the accused willingly but later on retracted from the said statement when she stood as a witness before this Court and this is a well acknowledged principle that in such events, the statement recorded before the Court during trial will outweigh the previous statements.
27. In her testimony before this Court she has clearly stated that she was offered money by the accused and therefore, she left with him. This also completes the requirement for the commission of the offence U/s 361 IPC which would tantamount to "enticement". Furthermore, she was found with the accused on the Railway Station and this fact State Vs. Navi Hussain FIR No. 1261/15 P.S. Uttam Nagar Judgment dated 23.10.2021 Page No. 11 of 12 has been corroborated by the IO and brothers of the victim. In so far as the contention of the accused regarding them being interested witnesses does not hold any ground as he did not deny having being found with the victim or the fact that they did not run away.
28. Hence, in view of the aforesaid discussions and reasons, it can conclusively, be held that Prosecution has been successful in proving the guilt of the accused beyond reasonable doubts and therefore, the accused Navi Hussain S/o Mohbbat Ali is convicted for the offence u/s 363 IPC.
29. Ordered Accordingly.
Pronounced in open Court, on this Day of 23rd of October, 2021. This judgment consists of 12 signed pages.
(ALKA SINGH) Metropolitan Magistrate-08/South-West Dwarka Courts: New Delhi State Vs. Navi Hussain FIR No. 1261/15 P.S. Uttam Nagar Judgment dated 23.10.2021 Page No. 12 of 12