Delhi District Court
State vs Bhawna. on 12 March, 2007
IN THE COURT OF Ms. NIRJA BHATIA : METROPOLITAN
MAGISTRATE : DELHI.
FIR No. 11/05
P.S Ashok Vihar
State V/s Bhawna.
JUDGEMENT :
1. S.No. of the Case : 579/2/05.
2. Date of Commission of offence : 05.01.05.
3. Name & Add. of Complainant : 1). Smt. Anjali Devi W/o
Sh. Ramesh Tiwari R/o
H.No. WP-301/2, Village
Wazirpur, Delhi.
4. Name & Address of Accused : 1). Smt. Bhavna @
Shashi W/o Sh.
Rajender, R/o Village
Khushipur, P.S Dalelpur,
Distt. Gurdaspur, Punjab.
5. Offence complained of : U/s 363/365/369 IPC.
6. Plea of the Accused : Pleaded not guilty.
7. Final Order : Acquitted for offence U/s
369 IPC but convicted for
having committed an
offence U/s 363/365 IPC.
8. Date of Such Order : 12.03.07.
BRIEF FACTS & REASONS FOR SUCH DECISION
1. The facts of the present case have been disclosed in the statement Ex.PW-2/A made by the complainant Smt. Anjali Devi W/o Sh. Ramesh Tiwari R/o H.No. WP-301/2, Village Wazirpur, Delhi claiming therein that on 05.01.05 at around 6.30 pm, one unknown female, aged around 30-32 years came to her home and informed her that she was associated 1 with polio campaign. She also told that she has been entrusted with the work to go to each household and give polio drops to small children. After informing the said, she came inside her home and sat. She started writing the name and age of the child and in the meanwhile the complainant prepared tea for her. Thereafter she went to bathroom for washing vegetables while her child aged around 10 months was playing on the floor. The complainant stated that the name of the child is Pushpam and described that he is round face, height of around 2 ft. tall and has two fingures of both the toes joined. The tongue of the said child was also joined with jaw. The said child was wearing blue shirt, orange pyjami, green jersey and blue striped shocks. The complainant claimed that when she came out of bathroom after washing vegetables, she saw that the said lady was not there and her child also could not be seen. She realized that the lady had taken away her child and had also taken away his other son, aged 8 years who was later on sent back after providing him with biscuits. It was alleged that the said lady had taken away her younger child, aged 10 months and on the complaint, she prayed for an action. On receiving the statement Ex.PW-2/A, endorsement Ex.PW-5/A was made by the D.O and investigation was handed over to the IO. After investigation was carried out, the charge sheet was filed in the court.
2. Thereafter accused was summoned and cognizance of the offence U/s 363/365/369 IPC was taken. The accused was in J.C at that stage. Since her charge sheet was filed beyond time, the accused was admitted to statutory bail however she could not furnish her bail bond. Documents were supplied to her. After hearing submissions on the point of charge, same was framed against the accused U/s 363/365/369 IPC on 20.09.05 to which she pleaded not guilty and claimed trial.
23. PW-1 H.Ct. Om Pakash was the formal witness being the duty officer. He had registered the FIR Ex.PW-1/A. He also made his endorsement on the same at pt. A. He also exhibited the copy of FIR as Ex.PW-1/B. He was not subjected to any cross examination being the formal witness.
4. The complainant Smt. Anjali Devi appeared as PW-2. She stated on oath that on 05.01.05, the accused (who was identified by her in the court correctly) had come to her home to give polio drops. She stated that she was told by the accused that she wanted to take her younger son for giving toffees on which the accused was informed that her son is less than one year and thereafter the accused asked about her elder son and stated that she will take her for getting toffees for him. At the time of making the aforesaid statements, she was standing on the gate as there was no electricity. Her elder son came in the meanwhile from tutions. The complainant thereafter left her younger child with her elder son and went to toilet to wash vegitables. At that time, her younger child was aged 10 ½ months. When she came out from the bathroom, she saw her elder child with the packet of biscuits and namkeen and she was told by her elder child that the accused had taken both her children out and after getting biscuits and namkeen, sent her elder son back saying that she is coming back after getting her footwear repaired. However she did not came back with the younger child.
5. Search was made despite which the accused and younger son of the complainant could not be located. Thereafter she lodged a police complaint which was Ex.PW-2/A bearing her signature at pt. A and police thereafter did not visit. She stated that she had seen the photographs flashed on T.V and she went to P.S Ashok Vihar. The SHO of P.S Ashok Vihar thereafter provided her with letter and with the said 3 letter, she went to P.S Jahangir Puri from where the accused was earlier arrested. She could not find the accused at P.S Jahangirpuri however she got her photograph from P.S Jahangirpuri which was Ex.P1. She exhibited the photograph of her son also as Ex.P2. Thereafter she was told to identify the the accused at Tihar jail where the accused refused to participate in TIP. She stated that the accused had come to her home on 05.01.05 with some clothes and blankets for the child stating that the Govt. institutions has sent the same for those children to whom the polio drops are to be administered. The recovery memo of the said articles which the accused had produced on 05.01.05 was Ex.PW-2/B bearing the signature of the complainant at pt. A. In her cross examination, she stated that she had told the police that the accused has asked her to take her son for getting toffees which she refused stating that since her son is less than one year. At that stage, she was confronted with her statement Ex.PW-2/A where it was not so recorded. She was again confronted with her statement as she claimed to have told the police that thereafter the accused persuaded her to take out her elder son for getting toffees which was also not recorded. The complainant claimed that she does not know that prior to coming to her home, the accused visited any other household for administering polio drops. She denied the suggestion that the accused did not come inside her house as had been stated by her in the statement Ex.PW-2/A at point C to C1. She claimed that it is not contrary to the statement made by her in examination in chief wherein it was stated by her that the accused was standing on the gate as she clarified that at that time, the accused was standing on the gate as there was no electricity. She also clarified that during the presence of the accused, she was inside her house and also stood on the gate.
She stated that there was no neighbour or any other person present outside even during the period while there was no electricity as she 4 clarified that it was around 6.30 in the evening and the neighbourers were inside their houses and their gates were closed. She admitted that FIR of the incident reported was lodged on 06.01.05 however she clarified that on the same night i.e 05.01.05, she visited the P.S however none took cognizance on her complaint. The police did not took her statement till 24 hours had passed and no action whatsoever has been taken by the police for recovery of the child. She also stated that she had provided the name of one or two neighbours however the police did not make any note of the same. She stated that her earlier statement Ex.PW-2/A was read over to her. She stated to the police that she had tried to search for her son prior to lodging of the complaint. At that stage, she was confronted with her statement Ex.PW-2/A where it was not so specifically recorded.
The complainant claimed that she did not remember at the time of making her statement in the court as categorically after how many days of the incident, she saw the photograph of the accused on T.V. She volunteered that there was news item showing the accused being the arrested in connection with kidnapping of the child when she she had seen her. She claimed to have told the police that her elder son told him that the accused sent him back stating that she will come back after getting her footwear repair. She was again confronted where it was not so recorded. She denied the suggestion that the accused did not visit her home. She clarified that at the time of visit of the accused at her home, there was electricity however only 10 minutes prior to the incident of taking away of her son, the electricity had gone. She was given the suggestion that in the darkness her son slipped out of the house which she denied stating that her son was not able to walk and was only crawling and by doing so, he could not have gone far off beyond her control. The suggestion that she has falsely implicated the accused as the accused was also facing trial in other case was denied. She denied the suggestion that she was making false statement in the court.
56. Mst. Amrit @ Monu aged around 7 years, son of the complainant appeared as PW-3. He stated that on 05.01.05, the accused to whom he correctly identified had come in their house, while his mother had gone to bathroom, the accused took her and his brother Pushpam whom they used to call Babu. She got biscuits/namkeen for him and asked him to keep these articles at home as she would come back with Babu after getting her footwear repair. These facts were told by him to his mother. He also stated that the accused had asked his mother to prepare tea and in the meanwhile, she would get biscuits/namkeen. He stated that he came back with biscuits, meanwhile the accused fled away with his brother Babu. He stated that he had gone with his father for the search of Babu and the police also showed the photographs of the accused from which he identified her. He also stated that accused at that time was wearing scarf.
7. He was subjected to cross examination in which he stated that the incident took place in the summer season however he corrected that it was winter season. He stated that he was wearing pant-shirt at the time of incident whereas accused was wearing suit and scarf. At that stage, defence counsel took out handkerchief from his pocket and replicated the same as a scarf covering his ears after putting it in triangular shape to which the witness affirmed that the scarf was worn by the accused covering her ears and head which was tied below her chin as is usually worn in winters. He admitted that at that time, it was dark as electricity was not coming. He also stated that the accused was sitting inside his house on single bed. He stated that he had gone to attend tutions and when he came back, he was told about her by his mother. He denied the suggestion that due to darkness, he could not see the face of the accused. He stated that he had seen the accused correctly as electricity was 6 operational. The electricity went when she was taking away her brother. He again stated that during the presence of the accused, there was no darkness. He denied the suggestion that he had not seen the accused previously and never went with her in the market. He also denied that he is making false statement at the instance of his mother.
8. Lady H.Ct. Monika appeared as PW-4. In her examination, she stated that on 26.05.05, while she was posted at P.S Ashok Vihar, she alongwith lady Ct. Mamta and IO SI Kamal Singh had reached the court of Sh. Raj Kapoor where the accused with muffled face was produced. The IO after securing permission of the court recorded her disclosure in the presence of witness. The arrest memo was also made Ex.PW-4/B bearing her signature at pt. A. Thereafter the accused was remanded to J.C and her statement was recorded by the IO. She stated that since the face of the accused was muffled, she could not see the same. No substantial questions were put to her in the cross examination as the witness was formal.
9. ASI Balwan Singh appeared as PW-5. He stated that on 06.01.05 while he was posted at P.S Ashok Vihar, the complainant came at P.S and got her statement recorded. He affirmed her statement as Ex.PW-2/A, attested by him at pt. A. He prepared tehrir and handed over the same to D.O for registration of FIR. After FIR was recorded, the investigation was marked to him on the first day. He tried to search the kidnapped child at railway station and ISBT but the child could not be found as there was no proof. On the next day, investigation was marked to SI Kamal Singh. He stated that on 06.01.05, one bag of cloth was handed over to him by the complainant which was seized by him vide Ex.PW- 4/B bearing his signature at pt. B. He stated that the complainant had informed him that the bag belonged to the accused who had taken her 7 child with her. The case property was produced on the next day which he identified. He was not subjected to any cross examination.
10. The lady constable Sangeeta appeared as PW-6. She stated that while being posted at PS Ashok Vihar, on the directions of IO, she had taken the accused at BJRM hospital for her medical examination where after she was sent to lock up. Her statement was recorded by the IO. She was also not subjected to any cross examination.
11. H.Ct. Manju appeared as PW-7. She stated that at the relevant time, she was posted at P.S Ashok Vihar and had participated in investigation with IO SI Kamal Singh Meena. Alongwith IO, one constable from Home Guard and the accused to whom she correctly identified in the court, went to village Tapala, Distt. Gurdaspur, Punjab where the matrimonial home of the accused was situated. The IO made enquiries from the accused qua kidnapping of the child in which she disclosed that she had kidnapped the child and sold the child to one person at Amritsar. On securing the lead, they went to Golden temple, Amritsar. There the IO made search for that person but he could not be found.
In the cross examination, she stated that they stayed at Golden temple at night and proceeded for village of the accused on the next morning. She denied the suggestion that the accused did not inform the IO that the child was sold somewhere at Amritsar. It was denied that her disclosure was not recorded. Same was thereafter exhibited as Ex.PW-7/A. She admitted the suggestion that besides the disclosure, other documents were also prepared. However it was denied by the witness the statement of in laws of the accused were also recorded which were not placed on record. She denied the suggestion that she is making false statement at the instance of IO and the accused has been falsely implicated.
812. Ms. Archana Sinha, M.M, appeared as PW-8. She stated that on 27.05.05, the IO SI Kamal Singh had put an application for conducting TIP of the accused which was assigned to her by Sh. Raj Kapoor and on 30.05.05, she conducted the TIP of the accused at Central Jail, Tihar. During TIP, accused refused to participate in TIP proceedings and she obtained her signature on the proceedings. The carbon copy of the same was Ex.PW-8/A bearing her signature at pt. A. No cross examination of this witness was conducted.
13. IO Inspector Kamal Singh appeared as PW-9. He stated that on 15.02.05 while being posted at P.S Ashok Vihar, he received investigation of this case. After perusing the file, he got the photographs of the kidnapped child flashed on T.V alongwith his particulars and got pasted the photocopies reflecting the photographs of the kidnapped child and the suspected person. He also made several attempts to trace the child but could not succeed. After few days, the complainant came to P.S and informed him that the accused herein was arrested by the police officials of P.S Jahangirpuri. He also handed over the photograph of that lady. He was told by the complainant that she had visited P.S Jhanagirpuri and had met the SHO and had identified the accused from her photograph. He further narrated that photograph of the accused was given to the complainant by SHO P.S Jahagirpuri which she produced before him. He prepared the seizure memo of photograph which was Ex.P1. The IO stated that he went to P.S Jahangirpuri and through SHO came to know that the accused was arrested by P.S Jahangirpuri in case FIR No. 318/05 U/s 363 IPC. Thereafter he came to Tis Hazari and applied for PW's of the accused. On his application, PW's were issued against the accused for 26.05.05. On 25.05.05, he went to the house of the complainant and recorded the statement of Mst. Amrit, son of the complainant. On 26.05.05, he alongwith lady constable Mamta and 9 Monika came to Tis Hazari court where the accused was produced by Jail staff in muffled face. He recorded the disclosure statement of the accused. He arrested the accused and prepared her arrest memo Ex.PW- 4/B. He also applied for TIP and on 30.05.05, he alongwith son of the complainant went to Central jail, Tihar for TIP. There he came to know that the accused had refused to participate in TIP.
On 01.06.05, he obtained the PC remand of the accused for five days and alongwith Lady Ct. Sangeeta and accused went to BJRM hospital for getting her medical examination. Thereafter the accused was taken to P.S and was kept in lock up. On 02.06.05, he alongwith lady Ct. Manju went to Punjab. They went to village Tapala where the matrimonial home of the accused was situated. He made enquiry from neighbours. He also made enquiry from her mother in law and husband however all the persons stated that they had not seen the accused with any child. He thereafter interrogated the accused wherein she disclosed that she had sold the child near Golden temple, Amritsar. When they went to Gurudwara Golden Temple, the accused pointed out the gate of golden temple and told her that she had sold the child to one person there. He made enquiries but could not get clue of the child. He thereafter alongwith accused and lady Ct. Manju returned to Delhi where he again got the accused medically examined. He thereafter took the accused to Village Bhalswa where the accused pointed out the house where she used to reside earlier. He made enquiries from the people residing there but could not found the kidnapped child. He thereafter produced the accused on 06.06.05 and further obtained P.C remand of the accused for two days. As the accused disclosed that the child could be found in Chandigarh, she was taken to Chandigarh were he found that there were only Govt. flats and thereafter she was taken back to Delhi and was produced in the court on 08.06.05. After completion of investigation, charge sheet was filed in the court.
During cross examination, IO stated that he started proceedings 10 regarding arrest of the accused on 21.01.05 when he received the information about arrest of accused Bhawna by the officials of P.S Jahangirpuri. Thereafter he recorded the disclosure and prepared her arrest memo. He also recorded the statement of lady constable who had witnessed the arrest and thereafter moved an application for remand of accused to J.C. He admitted that on the day when the accused was arrested, he did not record the statement of any other witness from the complainant's side and had recorded the statement of the complainant on 21.05.05. He stated that he did not receive any negative of the photograph of the accused and did not ask for negatives and or the receipt of the photographer to show its authenticity as admittedly she received the same from SHO, P.S Jahangirpuri.
He stated that as the complainant had come to him at P.S on 21.05.05, he recorded her statement at P.S and only her statement was recorded. He stated that as the complainant revealed about the incident being witnessed by her elder son, he also recorded his statement on 25.05.05 at his home where he went alone as he stated that he has mentioned the said fact in the daily dairy and he claimed that he did not remember about the time when he left the P.S on 25.05.05 when he went to record the statement of the son of the complainant. He stated that he had seen the house of the complainant previously also and the son of the complainant was present when he visited him. He stated that the beat constable identified the house of the complainant when he made visit for the first time. He denied the suggestion that the statement of son of the complainant was recorded at P.S and he did not visit his home. He denied the suggestion that he had conducted the entire proceedings at the PS itself and did not visit the spot. He denied that he has made false statement in the court.
14. After completion of P.E, S/A was recorded U/s 313 Cr.P.C in which 11 the accused denied that on 05.01.05, she visited the house of the complainant and has told her that she had come there for administering polio drops. She stated that on 05.01.05, she was at her matrimonial home at Tapala, Dera Baba Nanak, Gurdaspur, Punjab. She claimed that she never visited the house of the complainant and was taken there for the first time by the IO. She denied that after sending Mst. Amrit to his house, she fled away with the child Pushpam. She further denied that when she did not return to the house of the complainant with her son Pushpam, the complainant went to P.S and her statement Ex.PW-2/A was recorded. She claimed that she was away at her matrimonial home up to 17.02.05 and had come to Delhi on the said date and firstly took a room on rent at Jahangirpuri and on 30.05.05, she was called to court where she was shown the photographs of the child. Thereafter IO took her signature on some papers. She claimed that the bag Ex.P1 does not belong to her and she never visited the house of the complainant. She further denied rest of the incriminating evidence. In the further statement, she stated that she does not know the whereabouts of the child whose photograph was shown to her. She claimed that she was not produced in the court in muffled face. She admitted that the IO had taken her P.C during which she was taken to Punjab. She admitted that the IO had moved an application for getting her TIP conducted wherein she refused to participate. She claimed that all the witnesses have falsely deposed against her. She pleaded innocence. She also wished to lead D.E.
15. In D.E, she moved an application U/s 315 Cr.P.C and appeared as her own witness. She stated that she had been married in the year 1994. At the instance of defence counsel, she stated that she was married in the year 2004. She claimed that she was married on 29.12.04. She claimed that she is a Graduate. Thereafter she stated that she had come to the 12 court on 30.05.05 where she was shown the photograph of the child by IO SI Kamal Meena. In the court, IO asked to identify the photograph of the child which she refused. He thereafter made her sign few papers. During remand, she was taken to Punjab and was also taken to her second matrimonial home at Tapala from where enquiry was made from local people. The Mukhia of the panchayat and her family members informed the IO that she had never come to Delhi and was never seen with the said child at her matrimonial home. Thereafter she was told by the IO that since two more days are available, he shall beat her up and shall torture her or else she may change her statement to the extent that she had sold the child at Chandigarh. Thereafter he took the remand of Chandigarh without her knowledge. Thereafter alongwith lady Ct. Manju, she was taken during her second police remand at Chandigarh. She claimed that she was taken to a hotel at Chandigarh and made to stay there at night. In the morning, she was woken up and in her presence, IO consumed liquor and asked her where they had to go to which she replied as since he had brought her there, she cannot say anything. Thereafter IO took her to rounds of the city meaninglessly. At that stage, she requested to record her proceedings in camera. During remaining examination, she revealed that in the room of the hotel at Chandigarh, IO asked her to suck his private part which she refused stating that she is not a female of easy virtue. Despite her refusal, IO insisted and threatened her. He then offered Limca to her in which he mixed whisky. As she could smell the whisky from Limca, she did not consume it and threw it in the toilet. She thereafter alleged that IO and lady Ct. Manju indulged in sexual intercourse after removing their clothes while she kept lying on the floor.
She further claimed that they did the same acts throughout the night in her presence. She claimed that in the morning, when the lady constable Manju went for taking bath, IO asked her again for the same act 13 of sucking, which she refused due to which IO slapped her and asked her to sit. Thereafter she stared crying and IO threatened her to implicate in this case. She stated that at that stage, Ct. Manju enquired from the IO that if the accused would narrate all the facts in the court then what will happen to which the IO replied that he will spoil her case.
In the cross examination by Ld. APP for State, she stated that she did not come to Delhi in January 2005 and did not know the complainant. She claimed that she was first apprehended by the officials of P.S Jahangirpuri. She admitted that in the said case, the allegations of similar nature were levelled against her. She admitted that she was arrested in the court after her PW's were procured by the IO. She admitted that the IO moved an application for her TIP. She admitted that since she had no previous acquaintance with the complainant, there is no question of her being friendly or enemical towards her. She denied that she had refused to participate in TIP on the ground that the complainant was on enemical terms with her. She volunteered that she had refused and had stated that she had many enemies and in furtherance of their ill intentions, they had got her implicated in this case. She claimed that she is apprehensions against the first complainant at whose instance, she was arrested from P.S Jahangirpuri. She admitted that the first complainant was the resident of Jahangirpuri. She admitted that she could not categorically state about the intentions of the first complainant at whose instance, she was arrested as she had never had a chance to come to Delhi. However she claimed that she had gone to visit one of the friends who introduced a child in front of her as her grand child and believing her statement as she had one daughter married, she had gone with the said child to temple from where she was arrested by the 14 officials of P.S Jahangirpuri.
She admitted that after her P.C was taken, they started for Tapala at 2 pm. She denied that she was firstly taken to her matrimonial home and from there to Swarn Mandir and claimed that she was firstly taken to Swarn Mandir and then to the house of her in laws. She admitted that when no recovery was made, they came to Delhi on the next day. She claimed that after 2-3 days, IO again sought P.C and she was taken to Chandigarh and for Chandigarh, they started at night on 06.06.05. She denied that they reached Chandigarh in the early morning where she informed the IO that she was not well and wanted to use toilet. She claimed that they reached Chandigarh at around 2.30 a.m on the same night. She denied that she took the IO to different govt. flats for recovery and claimed that in turn the IO made rounds of the city purposelessly and they came back to Delhi on 07.06.05. She stated that she never made any written/oral complaint to anyone including the Presiding Officer or the senior police officials against the IO qua the allegations she levelled during examination. She claimed that after coming from Chandigarh, she was not produced before the SHO. She denied the suggestion that the allegations against the IO are false and fabricated. She denied the suggestion that she had kidnapped the child Mst. Pushpam from the custody of the complainant. She further denied that she had never come to Delhi. She further denied that she had visited the house of the complainant on 05.01.05. She further denied the suggestion that she did not send the elder son of the complainant by getting biscuits on the pretext that she had to get the footwear of the son of the complainant repair from the cobbler. She further denied that Mst. Amrit believing her version did not leave the scene and went back to his home. She further denied the suggestion that he narrated about these facts to the complainant who in turn lodged a complaint against her. She further denied that sufficient time was not available to stay at Chandigarh. It was further denied that on 15 reaching Chandigarh earlier in the morning, she had told the IO that she is not well and went to toilet to wash clothes whereafter she locked herself inside the toilet and wasted lot of time in washing clothes. She denied the suggestion that thereafter search was made and they came back on the same day. She further denied the suggestion that she made a complaint to any police official or to the Presiding Officer in the court. She denied that her statement made in the examination in chief is false.
At this stage, it is relevant to have a cursory glance over the relevant sections :
Section 363 Punishment for kidnapping - Whoever kidnaps any person from (India) or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 365 Kidnapping or abducting with intent secretly and wrongfully to confine person - Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 369 Kidnapping or abducting child under ten years with intent to steal from its person - Whoever kidnaps or abducts any child under the age of ten years with the intention of taking dishonestly any movable property from the person of such child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
26.I now propose to deal firstly with the offence U/s 369 IPC under which the accused had been charge sheeted besides offence punishable U/s 16 363/365 IPC. From the bare perusal of the provision, it is apparent that the kidnapping/abduction to attract prosecution under the present section must be done with the intention to take movable property from the person of such child. There is no evidence on record to show the same. It is not the case of the prosecution that at the time of taking away, the child was wearing some valuable on his person which were removed. In these circumstances, the prosecution has failed to even show substantial allegations for setting out a case under the aforesaid provision from which the accused is acquitted.
27. I now propose to deal with the evidence which had been brought on record to substantiate the charge U/s 363/365 IPC. It is revealed in the evidence that in the evening of 05.01.05, the accused pretending herself to be a worker associated with polio campaign came to the house of the complainant Anjali where her child Pushpam, aged around 10 months was seen playing by her. Her other child Mst.
Amrit was also present and in the presence of both the children, she firstly asked the complainant to take Pushpam for getting him toffees. When she was told that the child is too small to chew toffees, she relented. Thereafter when the complainant went to bathroom for washing vegetables, she sneaked with both the children, as she found after coming from bathroom. She saw her elder child returning alongwith the packets of biscuits/namkeen and the complainant was told by him that the accused had taken both of them together and after getting biscuits/namkeen, she sent her elder child back home saying that she is coming home back after getting her footwear repaired. The accused thereafter never returned which followed for searches of the child who could not be located. Thereafter complaint Ex.PW-2/A bearing her signature at pt. A was 17 lodged. Lateron she saw photographs of the accused on T.V and she went to P.S Ashok Vihar. SHO P.S Ashok Vihar wrote a letter for her with which she went to P.S Jahangir Puri from where the accused was arrested earlier. She could get photograph of the accused which was Ex.P1. She was lateron called at Tihar jail for identification of the accused where the accused refused to participate in TIP as is recorded in Ex.PW-8/A by Ld. MM while recording TIP proceedings on 30.05.05. She also revealed that the accused on 05.01.05 had come with some clothes and blankets for the child projecting that Govt. institution had given the same for children to whom polio drops are to be administered, which was recovered by the police vide Ex.PW-2/B. In the cross examination, complainant had been confronted with her statement that she did not tell the police that the accused initially asked younger child for toffees on which she told her that he is less than one year old. She was confronted with her statement to the fact that she did not disclose to the police that she lateron asked the complainant to take her elder child for toffees however she told in her cross examination that both the statements were earlier revealed to the police. She further stated in her cross examination that there was no neighbour or any other person present outside during incident as all the nieghbours were inside their houses and their gates were closed. She also stated that FIR was registered only on 06.01.05 though she reported the matter on 05.01.05 itself, which was not lodged by the police and no action was taken. She also stated that the police did not take any action even to recover the child and despite her giving names of 1-2 neighbours, no enquiry was made from them. She also revealed in her cross examination that she saw the accused on T.V as there was a 18 news item showing the accused to have been arrested in connection with kidnapping of the children. The suggestion was denied that the accused did not visit her house. She also denied the suggestion that under the darkness, her son slipped out from the house. She added that her son was so small that he could not walk and by crawling, he could not have gone far off.
From examination and cross examination it is worthwhile to note that no cross examination as regards the genuineness of the photograph Ex.P1 and the articles recovered which were Ex.P2, have been made. The aforesaid corroborates the fact of identity of the accused as there is no cross examination to the said extent. Her visit to the house of the complainant is also corroborated as there is no suggestion that for want of prosecution of case property Ex.P2 which was revealed to have been left at the house of the complainant by the accused who came calling under the pretext of worker belonging to polio campaign and in furtherance of which she came to have brought the clothes and blankets for the said children to whom the drops were to be administered.
The fact of visit of the accused to the house of the complainant and also her identity were also proved by the statement of the child witness Amrit who identified her in the court during his examination in chief. He also stated that when his mother had gone to bathroom, the accused took him and his brother Pushpam and got him biscuits/namkeen. She told him to keep the articles at home as she would be coming back to home after getting her footwear repair, which fact he told to his mother.
He stated that thereafter the accused did not come. He stated that he had seen the photograph of the accused which also he identified. During cross examination, dramatic efforts have been made by Ld. LAC to extract contradiction as regards the identity of the accused however the 19 child remain unshaken despite such efforts and clearly pointed towards the accused being the same person involved in the act of taking away his younger brother. The suggestions were also denied that he could not see the face of the accused as it was dark. He also stated clearly that he had seen the accused properly as at that time, electricity connection was operational when she was taking her brother. He stated that electricity went thereafter. He asserted that during the presence of accused, it was not dark as electricity was functional and denied the suggestion categorically that he could not see the face of the accused as it was dark. The suggestion that he never went with her in the market was denied alongwith the suggestion that he was making false statement.
28. From the facts disclosed above, the identity, visit and act of taking away the child were proved beyond reasonable doubt. The accused further helped in reaching the aforesaid conclusion as she refused to participate in TIP citing the enmity between her and the unknown witness. It is worthwhile to observe that this factum of enmity between her and the complainant was denied by the accused herself when she came in evidence as her own evidence subsequent to moving an application U/s 315 Cr.P.C. She admitted that there was no occasion for her to have enmity with the complainant as she was living in Punjab where the complainant was the resident of Delhi. She thereafter improved upon her statement by saying that there are many enemies of her and in furtherance of their ill-intentions, they have got her implicated in this case. She pointed towards the first complainant at whose instance she was arrested from P.S Jahangir Puri. In the further cross examination, she retracted even from that piece of statement by claiming that she cannot categorically state about the intentions of the 20 first complainant as she never had a chance to come to Delhi. In these circumstances, she could not further any reason for refusal to rebut the presumption which is to be drawn against her by refusing to participate in TIP. She had given a cause to draw presumption against her which goes to support the facts presented by the prosecution.
The IO who was lateron examined, cross examined also established the facts that the complainant had approached him. He had seized the photograph produced by her and had recorded her statement on 21.05.05. He also recorded the statement of the child witness Amrit on 25.05.05, by going to his home which fact he recorded in his case diary. He thereafter sought P.C of the accused however the child could not be recovered. Accordingly, from the examination and cross examination of the witnesses, the ingredients of section 363 IPC were proved. The accused who chose to defend herself made serious allegations against the IO which had never been raised at any stage of enquiry, investigation and/or trial though Ld. Defence counsel was all through available to her. The allegations which had been set out for the first time are of no avail to her as no such accusation had been made and/or suggestions were put to any other police witness including Ct. Manju who appeared as PW-7 in whose presence the aforesaid acts were allowed to have been committed by the IO. Hence, I have no hesitation in holding that prosecution has proved charge against the accused U/s 363 IPC beyond reasonable doubt. The child till date has not been recovered and during the court proceedings, the accused claimed that she had seen the child in question at Tihar jail in possession of some other lady, leads to establishing the ingredients of section 365 IC. It will be worthwhile to observe at this stage that the accused 21 produced in evidence against herself by claiming that she had seen the child in Tihar jail which goes to show her involvement in the commission of offence, without which she was in no position to identify or reveal about the said child.
29. Ld. Defence counsel infact went ahead on record to move an application of TIP of the child kidnapped as is recorded in proceedings dated 14.11.05 on which date the accused reported to have seen the child for which she was facing proceedings. In view of the aforesaid discussion, the accused is convicted for having committed an offence punishable U/s 363/365 IPC.
(ANNOUNCED IN THE OPEN COURT ON 12.03.07) (spare copy attached for accused) (NIRJA BHATIA) METROPOLITAN MAGISTRATE, DELHI.
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