Delhi District Court
State vs Gulshan @ Shibu Nitesh Digitally Signed ... on 16 September, 2022
IN THE COURT OF METROPOLITAN MAGISTRATE-05 (SOUTH-
WEST), DWARKA COURTS, NEW DELHI
Presided by: Sh. Nitesh Goel
State Vs Gulshan @ Shibu NITESH Digitally signed by
NITESH GOEL
FIR No. 200/13
PS Vikas Puri
GOEL Date: 2022.09.16
15:21:03 +0530
U/S 363/174A IPC
Date of institution : 27.03.2017
Date of reserving : 12.09.2022
Date of pronouncement : 16.09.2022.
JUDGMENT
a) C.C. Number 2357/17
b) Date of commission of offence 20.06.2013
c) Name of the complainant Rajender Rai s/o Monga Lal
Rai r/o Jhuggi no. 120/149
Indira Camp No. 5 Vikas Puri
Delhi
d) Name, parentage and address Gulshan @ Shibu s/o Ganesh of the accused @ Hakum r/o Jhuggi no. 365, Indira Camp no. 5 Vikas Puri Delhi
e) Offence complained of U/s 363/174 A IPC
f) Plea of the accused Plead not guilty
g) Final order Acquitted
h) Date of final order 16.09.2022 BRIEF REASONS FOR THE JUDGMENT
1. Brief factual matrix of the present case is that on 20.06.2013 at about 8:00 pm at Jhuggi no. 120/149 Indira Camp no. 5 Vikas Puri accused kidnapped minor Pinki d/o Sh. Rajender Rai female aged about 12 years from lawful guardianship of her parents. Further on 11.08.2017 accusesd have been declared proclaimed offender from the court of Sh. Gagandeep Jindal Ld. MM. Accused is alleged to have committed offences U/S 363/174A IPC
2. Chargesheet was filed and copy of the same was supplied to the accused as per mandate of Section 207 Cr.PC. Charge u/s 363 was framed against the accused for the offence under Section vide order dated 27.09.2016 and charge u/s 174A IPC was framed on 26.05.2022 to which he pleaded not guilty and claimed trial.
3. In support of its case, the prosecution has examined 11 witnesses.
4. PW 1- Ms Pinki was the victim. She deposed that on 20.06.2013 she along with accused left her house due to some family problem and went to Nangloi area where accused who is her maternal uncle left her in a lady room and he himself lived in a gents room. There they stayed for two days. Accused had not conducted any misbehave or immoral act with her during the said period. He took away her on her request and he had no fault. In the year 2013 she was studying in 8 th class. Police traced her and brought in PS Vikas Puri. Police also brought her in the court for recording her statement u/s 164 Cr. PC where Ld. MM has recorded her statement. She told the above facts to him. Her statement is Ex. PW 1/A. In the cross examination done by Ld. APP she deposed that Accused Gulshan not asked or taken permission from her parents before taking away her. She admitted that her age was 12 years. She has further stated in her cross examination that she had forced accused to take her away from her family as her parents did not allow her to go anywhere.
5. PW-1 Ct. Satyyabir joined the investigation with the IO.
Witness was cross examined by ld. Defence counsel.
6. PW 2 Dr. Pallavi Sr. Resident Casualty proved the MLC Ex. PW 2/A Witness was cross examined by the Ld. Defence counsel
7. PW 4 Ct. Praveen joined the investigation with the IO and has proved the arrest memo Ex. PW 4/A and personal search Ex. PW 4/B. He was cross examined by the Ld. Defence counsel.
8. PW 5 Ct. Harkesh was the DD writer. He has proved the roznamcha register report of DD no. 93B as Ex. PW 5/A He was cross examined by the Ld. Defence counsel.
9. PW 6 SI Ravinder was the duty officer and has proved the copy of FIR and endorsement on rukka and certificate of u/s 65 Indian Evidence Act vide Ex. PW 6/A, Ex. PW 6/B and Ex. PW 6/C respectively.
10. PW 7 Ram Kumar was the record clerk who identified the signature of Dr. Pallavi.
He was cross examined by the Ld. Defence counsel.
11. PW 8 SI Rajesh has deposed that he received DD no.
93B regarding missing of Pinki. He recorded the statement of complainant Ex. PW 8/A. He prepared rukka Ex. PW 8/B, he also prepared the form of missing form and WT message is Ex. PW 8/C. He was cross examined by the Ld. Defence counsel.
12. PW 9 SI Vikas Sahu has proved the documents regarding age proof which was exhibited as Ex. PW 9/A, Ex. PW 9/B and Ex. PW 9/C respectively.
He was cross examined by the Ld. Defence counsel.
13. PW 10 SI Johnson Jacob has deposed that on 22.06.2013 he was posted at PS Vikas Puri as SI. That day he re- ceived the case for further investigation. He analyzed CDR of ac- cused Gulshan and his location was found in Nangloi Area of Delhi. Then he along with one constable who name he do not remember now and Sh. Rajender Rai father of girl Pinki went to Nagloi area and on search near a Juice Shop in Shiv Ram Park Nangloi. Both accused and the girl were found. The girl was identified by her fa- ther. He interrogated both of them and thereafter they were brought to PS. Accused was arrested and was personally searched He had carried out proceedings of arrest at the spot and thereafter both of them were brought to PS. Accused was sent to lockup as he could not produce surety. Girl was got medically examined at DDU Hospital and the girl was sent to Nirmal Chaya.
14. On 23.06.2013 accused was released on police bail. On 24.06.2016, statement u/s 164 Cr PC of girl was got recorded and he obtained the copy of the same. On same day girl was re- leased to her father from Nirmal Chhaya. He recorded the state- ment of Ct. and Rajender Rai. Thereafter, he handed over the case file to MHCR. Identity of the accused is not disputed.
15. He was cross examined by Ld defence counsel. He stated that he do not remember if he recorded statement of girl u/s 161 Cr. Pc. Volt. He can tell about the same after going through the file. At this stage witness is shown the file and witness states that he had recorded statement u/s 161 Cr. PC of the girl. She deposed that girl in her statement u/s 161 Cr. PC and 164 Cr. PC had stated that the accused was her uncle (Mausa) in relation and he had not done anything wrong (physical relation) with her. The place Shivram Park is situated in Nangloi. Spot where accused and girl was found is at a distance of 250 meters from PS Nangloi. He denied that all the documents were prepared while sitting in the PS and have no knowledge of the spot and same is around 2 Km. He denied that he had not carried out fair investigation in fair manner or that and de- posing falsely.
16. PW 12 ASI Ranbir has deposed that on 25.08.2017 he was posted as HC in PS Punjabi Bagh. That day on receiving secret information regarding Gulshan Rai ( who was declared absconder), he along with ASI Rajesh Kumar and ASI Virender went to Jhuggi no. 365 Indira Camp no. 5 on DD no. 9B. They reached at jhuggi no. 365 at around 7:30 am. Accused Gulshan Rai ( who is present in the court and correctly identified by the witness) was found in front of Juggi where he was arrested. The kalandara u/s 41.(1) (C ) Cr. PC was prepared by ASI Rajesh Kumar regarding the same. Kalandara.
17. Accused had admitted the DD no. 22A in U/s 294 r/w 313 r/w 281 Cr. PC and the same were exhibited as Ex. A1.
18. Statement of accused was recorded u/S 313 Cr.P.C wherein all incriminating evidence were put to him but he denied the entire evidence and pleaded that he was innocent and has been falsely implicated in this matter. However, accused did not opt to lead defence evidence and the matter was posted for arguments.
19. Ld. APP for the State has submitted that the accused is liable to be convicted for the offence charged with on the basis of depositions made by various witnesses. It is submitted that the prosecution has proved its case against the accused beyond reasonable doubts. Therefore, accused is liable to be convicted.
20. On the other hand, Ld. defence counsel submitted that accused is innocent and has been falsely implicated in this matter. He further submitted that accused be acquitted as the prosecution has failed to prove its case against the accused beyond reasonable doubts.
21. I have given my considerable thoughts to the submissions made by ld. APP for the State and ld. Defence counsel and perused the record.
22. It is a cardinal principle of criminal jurisprudence that prosecution has to prove its case beyond reasonable doubt by leading reliable, cogent and convincing evidence. Since, there is a strong presumption of innocence in favour of the accused and rebuttal of the same always lies upon the prosecution. It is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused. Accused is entitled to benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal.
23. Similar observations were made by the Hon'ble Apex Court in Kaliram vs State of Himanchal Pradesh, AIR 1973 SC 2773 and held that accused is presumed to be innocent till charges against him are proved beyond reasonable doubt.
24. In another case titled as Mousam Singh Roy & ors. vs. State of West Benga (2003) 12 SCC 377 wherein it was held that burden of proof in criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence. It was further observed that it is a well settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof, since a higher degree of assurance is required to convict the accused.
25. Section 363 IPC is a punitive section for the offence committed u/s 361 IPC. Section 363 IPC is reproduced as under:-
Kidnapping from lawful guardianship whoever takes or entices any minor under 1[sixteen] years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. Explanation.--The words "lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other person.
26. The prosecution in order to establish charge under Section 363 against the accused has to satisfy following ingredients:- :
1. The minor shall be of under 18 years of age being female.
2. The guardian shall have lawful guardianship.
3. Accused shall takes or entices such minor girl without the consent of her guardian.
27. For the purpose of satisfiying the first condition that minor shall be of under 18 years being female the prosecution has examined PW 9 SI Vikas Sahu who has exhibited PW 9/A Ex. PW 9/B and Ex. PW 9/C wherein it has been proved that date of birth of victim is 01.04.2001. The testimony of PW 9 remain unrebutted so the court relies on the testimony of PW 9 and it is proved that the victim is less than 18 years of age.
28. For the purpose of satisfiying the second condition that guardian shall have lawful guardianship. The prosecution examined PW 1 wherein she has deposed that she was living with her parents before the time when she went away with the accused. In Section 164 Cr. PC statement the victim Pinki has deposed before the Ld. MM that she was living with her parents before she went away with accused. The testimony of PW 1 unrebutted to the fact that she was living with her parents. Therefore the second condition of Section 361 IPC is satisfied that she was under the lawful guardianship.
29. Now lets come to the third and the most important condition of Section 361 IPC wherein the prosecution has to prove that accused has taken the minor away from the lawful gaurdian ship without the consent of such guardian by enticing her. In order to prove the fact, the court relies on the judgment of the Apex court which reproduced as under :-
S. Varadarajan v. State of Madras, (1965) 1 SCR 243. In the facts of that case, the prosecutrix - Savitri became friendly with the appellant therein( Varadarajan) who was her neighbour. The facts of that case reveal that on being questioned as to why Savitri meets the appellant therein, she stated that she wants to marry him. Savitri was admonished. It is stated that Savitri left her house and asked the appellant therein to meet her at a particular point. It is stated that they went to the Registrar's office and gave an application to get married and started making arrangements for the marriage. It is stated that parents of Savitri made efforts to search her and when she did not return a police complaint was lodged and FIR under Section 361 IPC was registered against the appellant therein. In the facts of that case, the short question which arose before the Supreme Court was as to whether Varadarajan, the appellant therein, has committed the offence of kidnapping or not. It is pertinent to mention here that in that case also the girl was nearly 18 years old. The Supreme Court, while disposing of that case, observed as under: "9. It must, however, be borne in mind that there is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of Section 361 of the Indian Penal Code.We would limit ourselves to a case like the presentwhere the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian. It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part wasplayed by the accused, he had at some earlier stage solicited or persuaded the minor to do so. In our opinion, if evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardian's house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfilment of the intention of the girl. That part, in our opinion, falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore,not tantamount to "taking". In either of the scenario a dent is created on the version of prosecution for which the benefit is given to accused.
In Thakorlal D. Vadgama vs. State of Gujarat (AIR 1973 SC 2313), the Hon'ble Supreme Court observed as follows:
"The word "entice" seems to involve the idea of inducement or allurement by giving rise to hope or desire in the other. This can take many forms, difficult to visualise and describe exhaustively; some of them may be quite subtle depending for their success on the mental state of the person at the time when the inducement is intended to operate. This may work immediately or it may create continuous and gradual but imperceptible impression culminating after some time, in achieving its ultimate purposes of successful inducement. The two words "takes" and "entices", as used in Section 361, I.P.C. are, in our opinion, intended to be read together so that each takes to some extent its colour and contents from the other.''
30. As per the testimony of PW 1 Pinki, she has deposed that due to some family problems she went to Nangloi area with accused Gulshan who is her Mausa ( uncle) . She Has further deposed that the accused had taken her away on her request only and accused has no fault in it. She has further stated in the cross examination that she had forced the accused to take her away from her family as her parents did not allow her go to anywhere. In the statement u/s 164 Cr. PC she has stated that she wanted to go away from her home because her parents used to taunt her for every work and her brother Sandeep did not let her move out of the house because of which she requested her Mausa ( uncle ) that she wants to go out of the house so that her parents could under stand her importance. She has further stated in Statement u/s 164 Cr. PC that her Mausa (uncle ) made her understand to not to leave the house but she was not ready to listen to him.
31. The testimony of PW 1 is corroborative from her statement u/s 164 Cr. PC. There seems to be no instance available on record wherein it can be proved that the accused has tried to entice or persuade her to take her away with him. Instead the facts available on record states that the victim herself has insisted her Mausa ( uncle ) to take her away as she was not comfortable in the company of her parents. Therefore, the prosecution has failed to prove the third ingredient of Section 361 IPC and it brings court to the conclusion that the accused is not guilty u/s 363 IPC as the ingredient u/s 361 IPC has not been satisfied.
32. Now lets come to the offence u/s 174 A IPC wherein the accused was declared absconder vide order dated 11.08.2017. After declaring absconder he was arrested by police u/s 41.1 (c) Kalandara on 25.08.2017 and thereafter he was charged u/s 174A IPC vide order dated 26.05.2022. He was declared absconder after recording of statement of process server HC Yudhvir Singh vide order dated 11.08.2017.
33. Section 174A IPC is a punitive Section and the same is reproduced as here under :-
Non-appearance in response to a proclamation under section 82 of Act 2 of 1974.-- Whoever fails to appear at the specified place and the specified time as required by a proclamation published under sub-section (1) of section 82 of the Code of Criminal Procedure, 1973 shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under sub-section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine.''
34. For the purpose of proving accused guilty u/s 174A it has to be proved that the proclamation u/s 82 Cr. PC has been properly executed.
35. During the trial the said Head constable Yudhvir Singh, was not examined as a witness by the prosecution, and no opportunity for his cross examination was afforded to the accused. In the opinion of the court, in the absence of calling the said process server HC Yudhvir Singh as a prosecution witness, the statement of the said process server cannot be relied upon.
As per section 82 Cr. PC, The proclamation shall be published as follows:- (i) (a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;
(b) it shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village;
(c) a copy thereof shall be affixed to some conspicuous part of the Court- house;
(ii) the Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides.
36. The perusal of the statement of process server HC Yudhvir Singh does not find mention of the fact that he has publicaly read the proclamation in some conspicious place of town or village in which accused resides. As the condition u/s 82 Cr. PC has not been satisfied completely therefore, it cannot be said that the execution of proclamation u/s 82 Cr. PC has been done in its true spirit.
37. Therefore, I do not find the accused guilty u/s 174A IPC as the condition u/s 82 Cr. PC has not been completely met. From the above facts and discussion, accused Gulshan @ Shibu is acquitted of offence under Section 363 IPC and 174A IPC .
38. File be consigned to record room.
Digitally signedAnnounced in open Court on 16.09.2022.
NITESH by NITESH GOEL
GOEL Date: 2022.09.16
15:21:25 +0530
Nitesh Goel
Metropolitan Magistrate-05
(South-West)-16.09.2022