Delhi District Court
State vs . Suresh Kumar on 3 May, 2010
1
State Vs. Suresh Kumar
FIR No. 300/06
IN THE COURT OF MS. BARKHA GUPTA : ADDITIONAL SESSIONS
JUDGE - IV: ROHINI (OUTER) : DELHI
Date of Committal ------- 21/04/07
Date of Institution
Before this Court ------- 09/01/09
Date on which reserved
for Judgment ------- 03/05/10
Date of Judgment ------- 03/05/10
Final Order ------- Acquittal
Sessions Case No. : 19/09
FIR No. : 300/06
PS : Vikas Puri
Under Sections : 363/366 IPC
State Versus Suresh Kumar
S/o Sh. Chotte Lal
R/o Jhuggi No. 140,
T-Camp, Uttam Nagar,
Delhi.
Permanent Address: -
Village Aulanpur, PS Malwa,
Post Raghavpur,
District Hardoi, U.P.
JUDGMENT
The present charge-sheet u/s 173 Cr.P.C. has been filed against the accused Suresh Kumar S/o Chotte Lal for offences punishable U/Ss 363/366 IPC.
Contd.....
2State Vs. Suresh Kumar FIR No. 300/06
2. Briefly stating the case of prosecution is that on 29.05.06, the accused Suresh Kumar had kidnapped the prosecutrix out of the keeping of her lawful guardianship without their consent intending that she may be compelled to marry the accused against her will or that she may be forced to illicit intercourse with some other person.
The complainant Omwati (mother of prosecutrix) searched for prosecutrix (her daughter) but when she could not be locted, she reported the matter to the police officials whereupon investigation commenced during which the prosecutrix was recovered and the accused Suresh Kumar was arrested and after compliance of necessary legal provisions, charge-sheet u/s 173 Cr. P. C. ws filed in the Court of Ld. MM who committed the case to Sessions Court after compliance of necessary legal provisions u/s 207 Cr.P.C and thereafter my Ld. Predecessor on 22/02/08 served charge u/Ss 363/366 IPC on the accused Suresh Kumar to which accused had pleaded not guilty and claimed trial.
Contd.....
3State Vs. Suresh Kumar FIR No. 300/06
3. The prosecution, in order to bring home guilt of the accused Suresh Kumar, the prosecution has examined nine witnesses in all namely Kumari Rajni as PW1, Dr. Udai Kumar Singh as PW2, Sh. Hari Shankar as PW3, Smt. Omwati (complainant) as PW4, ASI Jai Prakash as PW5, WSI Rajesh as PW6, Dr. Rajiv Ranjan as PW7, Sh. Manoj Kumar (The then Ld. MM) as PW8 and SI Manoj Kumar as PW9. Thereafter statement of accused Suresh Kumar u/s 313 Cr.P.C. was recorded to which he submitted that he is innocent and has been falsely implicated in the present case.
4. In the present case, the most material witnesses upon whose testimonies the case of prosecution revolves are the prosecutrix (PW1), her maternal uncle Sh. Hari Shankar (PW3) and her mother (PW4), hence their testimonies are discussed on priority.
The prosecutrix (PW1) has testified that she used to wash utensils alongwith her mother (PW4) in the kothies and at the relevant time, the accused was residing on the first floor of their house with whom she had developed intimacy. She further testified that on Contd.....
4State Vs. Suresh Kumar FIR No. 300/06 28.05.06, she asked the accused to accompany her since she had a quarrel with her mother whereupon she alongwith the accused went to Hardoi, however on the next day, the police officials reached there and recovered her vide memo Ex. PW1/B and also apprehended the accused. She has also deposed that both of them were brought to Delhi by the police officials where she was got medically examined and her statement U/s 164 Cr. PC which is Ex. PW1/A was also recorded. She further testified that the accused had never asked to accompany him nor he had ever enticed her in any manner and had not committed anything wrong with her.
During leading question by Ld. APP for state, she denied if the accused Suresh had taken her forcibly against her will and without the consent of her parents.
During cross examination by Ld. APP for state, she stated that though Ex. PW1/A (her Statement U/s 164 Cr. PC) was recorded on her dictation however she had not stated truth before the Ld. MM under the pressure of police officials being afraid of them. During further cross examination by Ld. APP, she categorically Contd.....
5State Vs. Suresh Kumar FIR No. 300/06 denied that Ex. PW1/A is correct or that the accused had ever committed any of the alleged offences on her person.
During cross examination by Ld. defence counsel she stated that she had voluntarily gone with the accused as she had a quarrel with her mother.
5. Hari Shankar (PW3) who is the uncle of the prosecutrix has testified that he had joined the investigation with the police officials during which he had also gone to Hardoi, U.P. where the prosecutrix (her Bhanji) and the accused were found who were brought to Delhi and the custody of prosecutrix was handed over to her mother Omwati (PW4).
6. Smt. Omwati (PW4) who is the mother of prosecutrix has deposed that at the relevant time, she had gone somewhere leaving her son Subhash, his wife Shobha and other children including the prosecutrix in the house and prior to her leaving, she had a quarrel with the prosecutrix. She further testified that her other children had Contd.....
6State Vs. Suresh Kumar FIR No. 300/06 telephonically informed her that the prosecutrix had left the house without telling anybody whereupon she reached to her house and searched for her daughter but as she was not found, hence, she lodged the complaint Ex. PW4/A. She also deposed that the prosecutrix had called her from Aita whereupon she alongwith her brother Hari Shankar (PW3) and police officials reached to Aita from where the prosecutrix was recovered and accused was arrested.
During cross examination by Ld. APP for state, she stated that she never told to the police officials that the prosecutrix was kidnapped by the accused Suresh or if he had ever intended to marry her.
7. Dr. Udai Kumar (PW2) has deposed that on 03.06.06, he had medically examined the prosecutrix and the accused vide MLC Ex. PW2/A and Ex. PW2/B respectively.
8. ASI Jai Prakash (PW5) is the duty officer who on the basis of rukka as produced by WASI Rajesh (PW6) had recorded the Contd.....
7State Vs. Suresh Kumar FIR No. 300/06 present FIR and proved its carbon copy as Ex. PW5/A and also proved the endorsement on rukka as Ex. PW5/B.
9. WASI Rajesh (PW6) is one of the Investigating Officers who testified that on 29.05.06, missing report of the prosecutrix was lodged in which regard she searched for her but in vain and thereafter on 01.06.06, she recorded the statement of Smt. Omwati (PW4) which is Ex. PW4/A, prepared the rukka Ex. PW6/A and got the FIR registered.
10. Dr. Rajiv Ranjan (PW7) has testified that on 14.07.06, on the basis of reports of radiological examination, dental examination and physical examination of the prosecutrix, he prepared Ossification Report Ex. PW7/A wherein he opined that the prosecutrix was above 17 years and less than 20 years of age.
11. Sh. Manoj Kumar (PW8 - the then Ld. MM) had recorded the statement of prosecutrix u/s 164 Cr. PC which has already been exhibited as Ex. PW1/A. He also proved the identification of Contd.....
8State Vs. Suresh Kumar FIR No. 300/06 prosecutrix by the Investigating Officer prior to recording her statement as Ex. PW8/A, his satisfaction regarding voluntary nature of her statement as Ex. PW8/B, certificate of correctness of proceedings as Ex. PW8/C, his directions to send the proceedings to the court of Ld. ACMM in sealed cover as Ex. PW8/D and the application of Investigating Officer whereby the copy of proceedings were handed over to Investigating Officer and his endorsement as Ex. PW8/E and Ex. PW8/F respectively.
12. SI Manoj Kumar (PW9) is the Investigating Officer who testified that on 01.06.06, investigation was handed over to him whereupon he recorded the statement of Smt. Omwati (PW4) and alongwith other police officials as well as with PWs 3 and 4 went to Hardoi, U. P. where they searched for the prosecutrix and the accused and both of them were found in the market. He further deposed that prosecutrix was recovered while the accused was arrested after which they were brought back to Delhi and were got medically examined. He also deposed that thereafter the accused was arrested and his Contd.....
9State Vs. Suresh Kumar FIR No. 300/06 personal search was conducted vide memos Ex. PW9/A and Ex. PW9/B respectively after which he moved an application before Ld. MM for recording the statement of prosecutrix U/s 164 Cr. PC which is Ex. PW9/C and also obtained copy of said proceedings. He also deposed that the custody of prosecutrix was handed over to her mother vide document Ex. PW9/D and later on he got the Ossification Test of the prosecutrix conducted.
13. I have heard the final arguments as advanced by Ld. APP for State, Sh. P. K. Samadhiya and Ld. Defence Counsel Sh. Kundan Kumar for accused and have also gone through the material placed on record.
Ld. APP for state has vehemently argued that as per version of the prosecutrix (PW1), it is placed on record that the accused had kidnapped her and committed the alleged offences upon her person and her testimony has been duly corroborated on material aspects by PWs 3 and 4 and also that the investigation was fairly conducted. Ld. APP submits that and as the prosecution has succeeded in bringing Contd.....
10State Vs. Suresh Kumar FIR No. 300/06 home the guilt of accused beyond reasonable doubt, hence he must be convicted for the offences alleged against him.
On the other hand, Ld. Defence counsel has vehemently argued that the prosecutrix (PW1) has nowhere deposed if at all the accused had ever kidnapped her or he ever intended to force her to illicit sexual intercourse or ever compelled her to marry him against her wishes. He further argued that PWs 3 and 4 who are the maternal uncle and mother of prosecutrix have also not deposed anything incriminating against the accused and rest of the witnesses have also not stated anything against the accused to connect him with the commission of alleged offences, hence he prays that as the prosecution has miserably failed to bring home guilt of accused u/s 363/366 IPC hence, he must be acquitted of charges levelled against him.
14. In the present case as already discussed earlier, the entire case of prosecution rests on the sole testimony of the prosecutrix (PW1), however she has very categorically deposed before the court that the accused neither took her nor enticed her and it was she who Contd.....
11State Vs. Suresh Kumar FIR No. 300/06 after quarrel with her mother had herself asked the accused to accompany her and they had gone to Hardoi. The prosecutrix has also been very categoric in stating that the accused never committed any wrong act with her and stated that she made the statement Ex. PW1/A under the influence/pressure of police officials and further stated that it was not a voluntary statement.
At this stage, it would also be pertinent to mention that Dr. Rajiv Ranjan (PW7) has proved the ossification report of the prosecutrix as Ex. PW7/A s per which she was more than 17 years and less than 20 years at the relevant time.
At this stage, it would be appropriate to discuss the provisions of Section 361 IPC :-
Section 361 IPC : "Kidnapping from lawful guardianship - "whoever takes or entices any minor under 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".
In the present case, it is placed on record that the Contd.....12
State Vs. Suresh Kumar FIR No. 300/06 prosecutrix herself on her own had asked the accused to accompany her to Hardoi, U. P. and from the Ossification Report Ex. PW7/A, the age of prosecutrix is shown to be more than 17 years and less than 20 years in which circumstances as per settled law, the view favouring the accused must be taken and the possibility that the prosecutrix must have been more than 18 years of age at the relevant time cannot be ruled out.
In the present case, Dr. Uadai Kumar (PW2) has proved the MLC of prosecutrix and accused and PW5 has proved the copy of FIR and other police officials have proved the investigation, however none of them have deposed anything incriminating against the accused which can connect him with commission of alleged offences.
15. Considering the totality of facts and circumstances of the case and in view of material placed on record, court is of the considered opinion that there is no material on record to connect the accused with commission of alleged offences and accordingly the accused Suresh is acquitted of the charges levelled against him u/ss Contd.....
13State Vs. Suresh Kumar FIR No. 300/06 363/366 IPC. His surety is discharged. Endorsement on documents of surety, if any, be cancelled as per rules. File be consigned to record room after completion of necessary legal formalities.
Announced in the open Court (BARKHA GUPTA)
on this 3rd day of May, 2010 Additional Sessions Judge - IV
Outer District - IV
Rohini District Courts
Delhi
Contd.....