Delhi District Court
State vs . Ram Bhajan Etc. on 20 December, 2018
IN THE COURT OF MS. CHETNA SINGH:ACMM-02
(CENTRAL) TIS HAZARI COURTS, DELHI
STATE Vs. RAM BHAJAN ETC.
FIR No. 210/07
New Case No. 299029/16
U/s : 363/365 IPC
P.S. : Old Delhi Railway Station
Date of Institution : 24.12.2008
Date on which case reserved for Judgment : 20.12.2018
Date of Judgment : 20.12.2018
JUDGMENT
1.FIR No. of the case : 210/07
2.Date of the Commission : 24.08.2007
of the offence
3.Name of the accused : Ram Bhajan
S/o Sh. Itwari Lal,
R/o Village Bhakoda, PS Kadar
Chowk, District Badaiyun, U.P.
4.Offence complained of : 363/365 IPC.
5.Plea of accused : Pleaded not guilty.
6.Final order : Acquitted
FIR No. 210/07 State Vs. Ram Bhajan PS: ODRS Page No. 1 of 13
BRIEF FACTS
1. The story of the prosecution is that on 24.08.2007, at unknown time, near west passenger hall, Old Delhi railway station within the jurisdiction of PS Old Delhi Railway Station, accused Ram Bhajan kidnapped a minor (four year old) boy namely Sunil Kumar by taking out of keeping of the said boy of lawful guardianship of his parents Ram Kishan and Sangeeta without their consent and kidnapped the said child with the intention of causing the said child to be secretly and wrongfully confined and thereby accused committed offences punishable u/s 363/365 IPC.
2. Upon completion of investigation, charge sheet was filed against the accused Ram Bhajan. Accused was consequently summoned. Copies of the chargesheet and the annexed documents were supplied to accused in compliance of Section 207 Cr.P.C, charge for the offence punishable U/s 363/365 IPC was framed against the accused Ram Bhajan on 14.07.2009 to which he pleaded not guilty and claimed trial.
APPRECIATION OF EVIDENCE
3. In order to prove its case, the prosecution has examined 11 witnesses.
4. PW-1 Ram Kishan deposed that on 27.08.2007, he had FIR No. 210/07 State Vs. Ram Bhajan PS: ODRS Page No. 2 of 13 made a complaint to the police regarding missing of his son Sunil aged about 3-4 years from Old Delhi Railway Station on 24.08.2007, who accompanied to the ODRS alongwith his wife who brought the food for him. She went to take the tea for him after leaving the child at the West passenger hall and when she returned and found minor Sunil was not there. He had shown the place of occurrence to the police. He deposed that his son was recovered from the house of accused (correctly identified in the court by witness) at village khuli Taharpur, PS Bhamora, Distt. Barielly, on 02.11.2008 vide recovery memo Ex.PW1/A, bearing his thumb impression at point A and at that time accused was caught hold of his child and at his instance police recovered the same and accused was apprehended and arrested in his presence.
This witness was cross examined at length by Ld. Defence Counsel. However, his cross examination is not repeated herein for the sake of brevity.
5. PW-2 Smt. Sangeeta deposed that she went to the Old Delhi Railway Station to give food to her husband alognwith his son about 3-4 years old. Accused (correctly identified in the court by witness) sent her to bring the tea and when she returned back she found that accused and her son was not there. She tried to search both accused as well as her son but could not find. Her husband also reached and she narrated all the incident to her husband. Her husband also tried to search his son and accused but he could not find. The said incident was taken place at about 12.00 noon. He made a complaint with the police. Her son was recovered from the possession of the accused at village Khuli Taharpur, PS FIR No. 210/07 State Vs. Ram Bhajan PS: ODRS Page No. 3 of 13 Bhamora, Distt. Barielly, UP after 14 months of incident vide recovery memo Ex.PW1/A, bearing her signature at point B. This witness was cross examined at length by Ld. Defence Counsel. However, her cross examination is not repeated herein for the sake of brevity.
6. PW4 Smt. Omwati deposed that her younger brother namely Ram Bhajan (correctly identified in the court by witness) is pulling rickshaw in Delhi from last 6 years. Accused Ram Bhajan handed over her a boy aged about 4-5 years in the year 2007 at her address. Accused told her that some unknown lady left the said boy unattended and he took him. Accused also told her that he searched the said lady but she could not found. Accused also said to her that if that lady would be traced out then he would hand over the child to her. After 5/6 years back police officials alongwith mother and father of said child reached her address. The said lady identified that child and she handed over the said child to his parents. IO recorded her statement.
This witness was not cross examined by Ld. Defence counsel despite opportunity being given.
7. PW-5 Ct. Anil Kumar deposed that on 31.12.2007, he was posted at PS ODRS as Constable and he alongwith IO/HC Ashutosh Rai visited village Makoda, Badaun regarding investigation in the present case. When they reached at above said place, they met the complainant namely Ram Kishan and his wife who informed them regarding kidnapping of their child Sunil. He alongwith IO and complainant visited the Pradhan of the village but he was not present. They contacted the FIR No. 210/07 State Vs. Ram Bhajan PS: ODRS Page No. 4 of 13 local police and alongwith them, they reached at the house of Ram Bhajan on the instructions of IO. At the house of accused Ram Bhajan, they met his brother namely Ram Kishore who informed them that Ram Bhajan is at the house of his sister Omwati at Bareily at village Khuliharpur. They alongwith local police and complainant Ram Kishan visited the house of Omwati where accused Ram Bhajan and the kidnapped child were present and complainant identified his child and accused was arrested by IO vide memo Ex.PW5/A, bearing his signature at point A. IO recorded the statement of witnesses. IO recorded the disclosure statement of accused Ex.PW5/B, bearing his signature at point A. He alongwith IO brought the accused to PS ODRS and IO recorded his statement.
This witness was not cross examined by accused despite opportunity being given.
8. PW-6 HC Babu Ram deposed that on 02.11.2008, he was posted as constable at PS Bhamroa, Bareily, UP. On the same date, HC Ashutosh Rai, Ct. Anil, father and mother of victim and Ram Kishore, brother of accused came at police station. Station officer informed regarding present case and gave us direction to conduct raid at village Khulitarpur, PS Bamora, District Barely. They all left for the spot. They conducted raid at the instance of brother of accused. Ram Kishore pointed out towards a home of his sister Omwati. They entered into a house and one child Sunil was recovered from the possession of the accused in gallery of house. Father and mother of victim also identified the child. Accused was arrested (correctly identified in the court by witness). Photographs of the child correctly identified by witness which is FIR No. 210/07 State Vs. Ram Bhajan PS: ODRS Page No. 5 of 13 Ex.P1. Accused was also interrogated by IO. IO recorded his statement.
This witness was cross examined at length by Ld. Defence Counsel. However, his cross examination is not repeated herein for the sake of brevity.
9. PW-7 HC Ashutosh Rai deposed that on 31.10.2008, the present case was marked to him at the direction of SHO. He recorded supplementary statement of Ram Krishan, father of victim. Ram Kishan stated that one rickshaw puller Ram Bhajan is also missing from the date of missing of his son. Ram Kishan raised doubt on Ram Bhajan. He further stated that if raid is conducted at house of the accused, his child might be recovered. He informed the incident to SHO and he alongwith Ct. Anil Tyagi left for PS Kadar Chowk, Badayun with complainant and his wife. On 02.11.2008 at about 8.00 AM they reached at PS Kadar Chowk and met with complainant and his wife. He alongwith local police staff reached village Bakoda, PS Kadar Chowk, Badayun, U.P. They entered into the house and recovered child from possession of accused, who was standing in gallery. Mother and father of victim child Sunil identified Sunil and accused. Body inspection of accused was done by him vide body inspection memo which is Ex.PW7/A, bearing his signature at point A. The photographs of child victim Sunil is also placed on record which is Ex.P1. DD entry regarding his arrival at PS Bhamora is Ex.PW7/C. He correctly identified the accused in the court.
This witness was cross examined at length by Ld. Defence Counsel. However, his cross examination is not repeated herein for the sake of brevity.
FIR No. 210/07 State Vs. Ram Bhajan PS: ODRS Page No. 6 of 13
10. PW-8 ASI Ved Prakash deposed that on 30.12.2007, he was posted as HC at PS ODRS as Duty Officer from 8.00 AM to 8.00 PM and received rukka from ASI Sardar Hussain at about 6.00 PM. On the basis of rukka, he registered the FIR and handed over Tehrir and copy of FIR Ex.PW8/A, bearing his signature at point A to ASI Sardar Hussain for further course of action. He also made endorsement on rukka from point A1 to A2 which is Ex.PW8/B, bearing his signature at point point A. He also issued certificate u/s 65-B Indian Evidence Act which is Ex.PW8/C, bearing his signature at point A. On 27.08.207, HC Ved Prakash No. 149, Crime had lodged DD no. 21 A regarding missing of one child Sunil Kumar. Attested copy of same is Ex.PW8/D. This witness was not cross examined by accused despite opportunity being given.
11. PW-9 Retired SI Sardar Hussain deposed that he received DD no. 21-A on 27.08.2007 regarding missing of one child namely Sunil. On 13.01.2008, he prepared site plan at the instance of the complainant which is Ex.PW9/A bearing his signature at point A. Advertisement regarding missing child Sunil was published in newspaper. Same is placed on record which is Ex.PW9/B. On 14.03.2008, he was transferred from PS ODRS to PS Rithala Metro and he handed over file to record room.
This witness was not cross examined by Ld. defence counsel despite opportunity being given.
11. PW-10 Ct. Rishipal Singh deposed on 02.11.2008, he was posted as Ct. with PS Amora, District Bareily, UP. On that day, IO FIR No. 210/07 State Vs. Ram Bhajan PS: ODRS Page No. 7 of 13 alongwith Ct. Anil, complainant and his wife came to PS Amora. He alongwith Ct. Babu Ram from PS Amora went in Village Khulitaharpur where they went to the house of one Ms. Omwati in search of the child. In the compound of said house, one person was standing with a child of 4-5 years age. Complainant identified his son and the accused Ram Bhajan who had kidnapped his son. Accused Ram Bhajan present and not correctly identified by the witness. IO prepared the seizure memo of child.
This witness was cross examined at length by Ld. Defence Counsel. However, his cross examination is not repeated herein for the sake of brevity.
12. PW-11 Inspector Rajender Dabas deposed that on 31.10.2008, he was posted as SI with PS ODRS. On that day, the present case was marked to him for further investigation. Complainant came to PS and informed that he had the information that his son is with accused Ram Bhajan (Accused correctly identified by the witness) in village Bakoda, District Badaiyun, UP. The information was shared with senior officers and they instructed him to proceed. On 01.11.2008, HC Ashutosh alongwith Ct. Anil went to village of accused to recover the kidnapped child. On 03.11.2008, HC Ashutosh and Ct. Anil returned to PS with the kidnapped child and accused and they handed over them to him. Accused was produced before Hon'ble Court and he was sent to JC and the child was handed over to his parents on the orders of Hon'ble Court. He recorded statement of witnesses. After completing the investigation, he filed the chargesheet before Hon'ble Court.
This witness was cross examined by Ld. Legal Aid Counsel. However, his cross examination is not repeated herein for the sake of FIR No. 210/07 State Vs. Ram Bhajan PS: ODRS Page No. 8 of 13 brevity.
13. All the prosecution witnesses were examined. Prosecution Evidence was ordered to be closed on 16.11.2018 and statement of the accused Ram Bhajan u/s 313 Cr. PC was recorded on 29.11.2018 in which accused opted not to lead any defence evidence. Final arguments were heard on 20.12.2018.
14. I have heard the rival submissions and carefully perused the record.
REASONS FOR DECISION
15. It is alleged by the prosecution that the accused kidnapped a minor boy namely Sunil by taking him out of lawful guardianship of his parents namely Sh. Ram Kishan and Ms. Sangeeta without their consent and hence he committed offence punishable under Section 363/365 of IPC.
16. In order to prove its case, prosecution has examined 11 witnesses in total. Before examining the testimony of the witnesses and the material on record, it is necessary to point out that the essential ingredients for commission of offence punishable u/s 363 IPC. The essential ingredients for offence of kidnapping from lawful guardianship u/s 361 IPC as follows:
(a) Whoever takes or entices any minor under sixteen FIR No. 210/07 State Vs. Ram Bhajan PS: ODRS Page No. 9 of 13 years of age if a male; or
(b) Under eighteen years of age if a female; or
(c) Any person of unsound mind;
(d) Out of the keeping of the lawful guardian of such minor or a person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
17. In this regard prosecution has examined PW-1 Ram Kishan and PW-2 Ms. Sangeeta who is the mother of kidnapped child and PW-4 Smt. Omwati from whose custody the child was recovered. PW-1 Ram Kishan stated that on 27.08.2007 he made a missing complaint with regard to his minor son namely Sunil aged about 3-4 years from ODRS on 24.08.2007. On that day, his wife left behind her child at West Passenger Hall and when she returned she was not found her child there. On 02.11.2008, the said child was recovered from the house of the accused at Khuli Tarapur, Distt. Bareily, U.P. vide recovery memo EX. PW1/A.
18. During his cross examination, the complainant/PW-1 Ram Kishan stated that the accused was also present at the Railway Station when his child was missing. PW-2 Sangeeta deposed that on the date of incident, accused sent her to bring tea and when she returned, she found that the accused and her son both were missing. She tried to search for the accused as well as her son but they could not be found and thereafter she narrated the entire incident to her husband.
FIR No. 210/07 State Vs. Ram Bhajan PS: ODRS Page No. 10 of 13
19. In her cross examination she stated that she left the custody of her child with the accused when she went to bring tea.
20. When the statements of these two witnesses is compared to the version of the prosecution the facts stated by the complainant seem doubtful. As per DD NO. 21A which is a matter of record, the complainant had filed a missing report and in the said report it has no where been stated that missing child was kept in the custody of the accused or that the accused was even present at that day when the missing report was lodged. It remains unexplained as to why the complainant originally did not name the accused or make any allegations of kidnapping qua his son.
21. Apart from this contradictions, the other record produced by the prosecution also seems contradictory and there are various loopholes which remains unexplained. The first glaring loopholes is the absence of the chain of events leading to the recovery of the child. It remains unexplained by the prosecution as to how the complainant received information as regards the accused having his child after about 14 months of the child gone missing.
22. Even otherwise, the child was recovered from the custody of PW-4 Smt. Omwati and thus it cannot be said that the child was recovered from the custody of accused. Even otherwise, the police officials who accompanied the raiding team for the recovery of the missing child have taken contradictory stands. PW-5 Ct. Anil Kumar and PW-7 HC Ashutosh Rai were two police officials who had gone alongwith complainant to recover the missing child. Further, PW-7 HC Ashutosh Rai FIR No. 210/07 State Vs. Ram Bhajan PS: ODRS Page No. 11 of 13 has narrated completely different version as compared to PW-5 Ct. Anil Kumar. On bare perusal of the testimony of PW-7 and PW-5 clearly reveals that the said contradictions. PW-5 Ct. Anil Kumar stated that the complainant pointed out towards the accused Ram Bhajan saying that he had kidnapped the child. However, the prosecution has not been able to explain as to what basis the complainant has arrived at the conclusion that the accused had kidnapped the child when clearly it is revealed from the testimony of the PW-4, PW-5 and PW-7 that the missing child was recovered from the custody of PW-4 Smt. Omwati. It remains unexplained as to why PW-4 Smt. Omwati was not made co-accused in the present matter.
23. PW-10 Ct. Rishipal has completely resiled from his original statement. Initially he even failed to identify the accused and during his cross examination he cannot identified the accused. During his cross examination by Ld. Defence counsel, he stated that he did not remember whether they met Ms. Omwati or she was present at the house. He also denied the suggestion that the complainant identified the accused. PW-1- Ct. Rishipal is the official from U.P. Police who accompanied HC Ashutosh and Ct. Anil Kumar. Even Ct. Anil Kumar and HC Ashutosh Rai have not mentioned as regards the presence of Ct. Rishipal during the recovery of the missing child.
24. Second IO SI Ram Kumar has not been examined by the prosecution on account of his death. Thus, on account of the contradictions in the testimony of all the police officials as well as on account of the contradictory statements given by the complainant and his FIR No. 210/07 State Vs. Ram Bhajan PS: ODRS Page No. 12 of 13 wife, benefit of doubt is required to be given to the accused Ram Bhajan.
25. It has been held in case of Sadhu Singh V/s State of Punjab 1997(3) Crime 55 the Hon'ble Punjab & Haryana High Court :-
"In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused."
26. As a cumulative effect of the above said discussion, I am of the opinion that a reasonable shadow of doubt is cast upon the prosecution version. Accused Ram Bhajan is entitled to the benefit of doubt.
Accordingly, accused Ram Bhajan stands acquitted for the charges U/s 363/365 of IPC levelled against him.
27. Ordered accordingly.
CHETNA Digitally signed by
CHETNA SINGH
Announced in the open SINGH Date: 2018.12.21
12:05:44 +0530
Court on 20.12.2018
(Chetna Singh)
Addl. Chief Metropolitan Magistrate
Central/Tis Hazari Courts, Delhi/ 20.12.2018 FIR No. 210/07 State Vs. Ram Bhajan PS: ODRS Page No. 13 of 13