Delhi District Court
State vs . Sheeshpal @ Shopali Etc. on 27 April, 2012
IN THE COURT OF SHRI SHAILENDER MALIK : ACMM/
NORTH EAST, KARKARDOOMA COURTS, DELHI.
State Vs. Sheeshpal @ Shopali Etc.
FIR NO. 331/99
PS Shahdara
U/S: 363/368/34 IPC
Date of Institution of case: 27.01.2000
Date on which judgment is reserved: 12.04.2012
Date on which judgment is delivered: 27.04.2012
Unique I.D. No. 02402RO334292003
JUDGMENT
a) Sl. no. of the case 302/03
b) Date of commission of offence 06.08.99
c) Name of complainant Shri Bijender S/o Himachal
Singh
ci)Name of accused, his parentage
and address 1. Sheesh Pal @ Sapoli S/o Shri
Gulfam Singh
2 Seeta W/o Shri Sheeshpal
3. Bhure S/o Shri Sohan Pal
All are R/o: R/o: Village
Selanpur, PS Shero, Distt: Kashi
FIR NO. 331/99 page 1of17 pages
Ram Nagar, U.P.
e) Offence complained of or proved U/S: 363/368/34 IPC
f) Plea of the accused Pleaded not guilty
g) Final order Acquitted
h) Date of such order :27.4.2012
j) Brief reasons for the just decision of the case
1. Accused Bhure S/o Sohan Pal, Sangeeta W/o Satpal, Seeta W/o Sheesh Pal and Sheesh Pal @ Shopali S/o: Shri Gulfan Singh were sent up to face trial for the offence under section 363/368/34 IPC. Factual matrix of the matter is that on 6.8.99 vide PCR call vide DD no. 21A, information was received regarding missing of a child. Regarding which, HC Kamal Kishore carried out the queries. Thereafter on 9.8.99 complainant Bijender Singh came to the P.S. and lodged complaint again vide DD no. 105B regarding missing of his child Sunny aged about 3 years. On that information, wireless messages were sent all across and efforts were made to trace the child. It is stated that on 12.8.99 complainant Bijender Singh again came to P.S and got registered the present case by giving the statement to the effect that he had earlier reported to the police regarding missing of his child on 9.8.99 and thereafter on 12.8.99 he stated that he came to know from some reliable sources that one Bhure S/o Sohan Pal who was residing along with brother in law of his maternal uncle Nathu Singh in the house of his FIR NO. 331/99 page 2of17 pages maternal uncle and one Smt. Sangeeta w/o Satpal are responsible for kidnapping of his child Sunny. On said statement of the complainant present case was registered and investigation was initiated by SI Rohtash Kumar and thereafter on the same day, police party led by SI Rohtash Kumar along with complainant went to village Neoli, PS. Shero , District Itah, U.P. , where at the house of Late Radhey Shyam one lady Harneeji and her son in law Sheeshpal @ Shopali met and upon inquiries,Sheeshpal revealed that his wife Seeta had gone to Fatehpur Sikri, District: Agra. Thereafter police party stated to have gone to PS Fatehpur Sikri, District: Agra where the local police also joined and they went to village Nagar and went to the house of one Ramveer Singh where in the courtyard one lady was found having a child on her lap and that lady was feeding the child with biscuit. Complainant immediately identified the child to be his son Sunny and that lady was identified by Sheesh Pal to be his wife Seeta. IO stated to have taken the custody of the child Sunny and prepared the recovery memo and child was kept with complainant and under the supervision of Ct. Subhash and thereafter upon interrogation, said Seeta was arrested . Her disclosure was recorded. Thereafter Sheeshpal @ Sapoli was also arrested.
2. It is further stated in the report under section 173 Cr.P.C that police party thereafter came back to Delhi where accused Sheesh Pal stated to have pointed out the place of incidence and accused Bhure son of Sohan Pal and accused Sangeeta wife of Satpal were also arrested in Delhi. Their disclosure statements were also recorded. Custody of the child Sunny was handed over to his father Bijender Singh (Complainant) and after the FIR NO. 331/99 page 3of17 pages completion of investigation charge sheet was filed.
3 After filing of the charge sheet accused were summoned to face trial and upon their appearance copies of charge sheet was supplied to them as per section 207 Cr.P.C. During the course of proceedings, accused Sangeeta stopped appearing and ultimately was declared Proclaimed offender vide order dtd. 23.4.2004. While proceeding further with the trial, Ld. Predecessor of this court vide order dtd. 4.12.2007 framed the charge for offence under section 363/368/34 IPC, to which accused pleaded not guilty and claimed trial.
4 In order to substantiate the charge prosecution has examined as many as 13 witnesses.
5 PW1 is HC Ramesh Chander who has testified that on 12.8.99 while he was working as duty officer in PS Shahdara, on the complaint of Bijender Singh, present case FIR no. 331/99 Ex. PW1/A was registered. Investigation of the same was given to SI Rohtash Kumar.
6 PW2 is complainant Bijender Singh who has testified that on 6.8.99 his son Sunny aged 3 years was missing. He searched for him and thereafter gave the report regarding his missing in PS Shahdara on 9.8.99. PW2 further says that he came to know that accused Bhure who was residing with "Sala" of his maternal uncle Nathu Singh for about 15-20 days and one Sangeeta had kidnapped his son and kept in village Neoli, District: Itah. PW2 says FIR NO. 331/99 page 4of17 pages that on his statement he signed and thereafter on 13.8.99 he along with police officials including Ct. Subhash, HC Hridesh and IO had gone to Fatehpur Sikri and from the possession of accused Sita , IO made the recovery of his son and memo regarding recovery is Ex. PW2/A. PW2 further says that accused Seeta was arrested by the IO and she made the disclosure statement Ex. PW2/D. PW2 also says that accused Shivpal, Bhura and Sangeeta were also arrested by the police vide arrest memos Ex. PW2/E to Ex. PW2/G respectively. PW2 further testifies regarding disclosure statements of accused Sangeeta, Bhure and Sheopal Ex. PW2/K to Ex. PW2/M. PW2 also says that child was handed over to him by the police vide handing over memo Ex. PW2/N. PW2 was duly cross examined. His relevant portion of cross examination will be discussed on the later part of the judgment.
7 PW3 is HC Manju who stated to be present at the time of arrest of accused Sangeeta being female. PW4 is ASI Savita who proved the DD entry no. 6A Ex. PW4/A recorded on 9.8.99 regarding missing of the child of complainant Bijender Singh.
8 PW5 is HC Subhash Chander who has testified that on 12/13.August, 1999 he along with SI Rohtash, H C Hridesh and complainant Bijender Singh had gone to PS Shoru , District: Itah after taking the permission from Sr. Police officials, where IO got associated with the local police and went to village Neoli. PW5 says that on reaching there Sheesh Pal @ Shopali and his mother in law and one Mokham Singh met, child was not there. PW5 says FIR NO. 331/99 page 5of17 pages that they were separately examined and Sheesh Pal told the IO that his wife Seeta has gone to her maternal home at Fatehpur Sikri, Village Nagar. PW5 further says that IO thereafter associated Sheeshpal with the police party and went to PS. Fatehpur Sikri and local police was taken along. P"W5 says that accused Seeta was found in her maternal uncle's house and was feeding biscuit to one child on her lap. Complainant identified the child to be his son and child also cried after seeing his father. Recovery memo of child was prepared which is Ex. PW2/A and accused Seeta was arrested vide memo Ex. PW2/B. PW5 also proved the disclosure statement of accused Seeta Ex. PW2/D. Custody of the child was given to the father under "Nigrani" (Supervision). Thereafter accused Sheeshpal @ Sapoli was arrested vide memo Ex. PW2/F and his disclosure statement Ex. PW2/M was recorded. IO recorded the statement of local police officials and thereafter PW5 stated to have gone to Chajjupur, gali no. 3, Delhi where at the instance of accused Sheeshpal accused Bhure was arrested vide memo Ex. PW2/E and disclosure of Bhure is Ex. PW2/L was recorded. PW5 further says that custody of the child was handed over to the complainant.
9 PW6 is the IO Inspector Rohtash Kumar who has also testified more or less above said facts. PW6 deposed that on 13.8.99 with police staff and complainant had gone to the village Neoli, District: Itah where Sheesh Pal met and told his wife namely Sangeeta had gone to Fatehpur Sikri. PW6 further says that thereafter they went to Fatehpur Sikri along with Sheesh Pal, there they took the help of local police and raided the house of Sangeeta's Nanihal, (Maternal Grand Parent's House) where Sangeeta was FIR NO. 331/99 page 6of17 pages found having Sunny on her lap and was feeding the child with biscuit. Child Sunny after seeing the father cried and PW6 stated to have apprehended accused Sangeeta and recorded the disclosure statement. Recovery memo of child Sunny is Ex. PW2/A was also prepared. PW6 has also stated in his evidence that name of the lady which he had mentioned as Sangeeta is Seeta. PW6 further says that the name of the lady from whose custody child was recovered is Sita and name of her Jethani is Sangeeta.
10 PW7 is Smt. Kusum who has stated that accused Seeta is daughter of his sister in law and at about 10/11 years ago Seeta had gone to her parental house with her husband Shopali. PW7 says that her husband went away after leaving Seeta at her parental home and after 3 /4 days police reached there and took away Seeta. PW7 says that police told her that there was some matter relating to child . Since PW7 was not supporting the prosecution version, she was allowed to be cross examined by the Ld. APP for the State. In the cross examination, PW7 denied to have seen any child of "Jeth" (brother in law) of Seeta with her. PW7 was confronted with her previous statement recorded by the police Ex. PW7/A.
11. PW8 is HC Hridesh who has also testified that on 12.8.99, he had accompanied the IO with other police staff along with complainant Bijender Singh to village Neoli, District Itah. PW8 has also stated that from village Sheeshpal was taken along and then they had gone to village Nagar Fatehpur Sikri. PW8 has also stated that when they reached in the house where accused Sangeeta was residing , they found one lady having baby on her lap.
FIR NO. 331/99 page 7of17 pages PW8 further says that IO made the enquiry from Sangeeta and child was taken into police possession and this witness also went on to depose all those facts as testified by other witnesses.
12. PW9 is SI Shyam Sunder of UP police. He says that on 13.8.99 when he was posted at PS Fatehpur Sikri, staff of Delhi police and complainant Bijender Singh came to his PS where from they had gone to village Nagar at the house of Ramveer where accused Seeta was found feeding a child on her lap. PW9 also proved the seizure memo Ex. PW2/A as well as about the arrest of accused Seeta and recording of her disclosure statement. PW10 is Ct. Sukhlal of UP police. He says that on 13.8.99 when he was posted at PS Fatehpur Sikri he had accompanied the police party of Delhi police to Village Nagar where accused Seeta was found with the child and child was recovered and accused Seeta was arrested. PW11 is Ct. Bishan Singh of UP police whose evidence is also on the same facts.
13 PW12 is ASI Charan Singh who proved the DD entry 21A dtd. 6.8.99 regarding missing of son of the complainant Bijender Singh on 6.8.99. PW13 is ASI Kamal Kishore whose evidence is also on the same facts.
14 Upon completion of prosecution evidence, all the incriminating evidence were put to the accused in statement of accused recorded as per section 281/313 Cr.P.C wherein each of the accused while denying the evidence has taken the plea that they have not made any disclosure statement nor child was recovered from the possession of accused Seeta. All the accused have stat ed that they have been falsely implicated by preparing FIR NO. 331/99 page 8of17 pages false documents at PS Shahdara.
15 No evidence was led in defence.
16 I have heard Ld. APP for the State and Shri J. G. Garg, Ld. Counsel for the accused. Having heard the submissions at Bar and having gone through the record carefully if we appreciate the facts and circumstances and entire evidence on the record, it would be very much evident that story of the prosecution is surrounded by many doubtful circumstance. The story of the prosecution as come in the police report is totally contradicted in the evidence on many material aspects. Present case was registered on the statement of Bijender Singh who firstly reported the matter to the police regarding missing of his child on 9.8.99 and thereafter it is on 12.8.99 complainant again came to the PS and got registered the present case. After registration of the FIR according to the prosecution version on the same day in the night intervening 12.8.99 and 13.8.99 police party led by SI Rohtash Kumar with complainant Bijender Singh stated to have gone to village Neoli of District Itah where accused Sheeshpal was also joined in the police party and they went to PS Fatehpur Sikri where after joining the police staff of UP they went to village Nagar where at the house of Ramveer one lady Seeta was found having a child on her lap. Said child was identified by the complainant and thereafter after the recovery of that child accused Seeta was arrested. After recording disclosure of the accused Seeta, Sheeshpal was arrested and thereafter in Delhi accused Sangeeta and Bhure were arrested. In the above said background of the fact, if we appreciate the evidence of PW2 Bijender Singh he simply stated that on 13.8.99 he went with the FIR NO. 331/99 page 9of17 pages police officials to Fatehpur Sikri where from the possession of the accused Seeta his child was recovered. PW2 has never stated that he along with the police party had first gone to village Neoli and thereafter to village Nagar of PS Fatehpur Sikri. Moreover evidence of PW2 is very vague and cryptic when he deposed that accused Sheopal, Bhura and Sangeeta were also arrested by the police. As pointed out above, that it is only after the arrest of accused Seeta upon her disclosure accused Sheeshpal was arrested and thereafter police party came back in Delhi and arrested accused Sangeeta and Bhure from Chajjupur , Shahdara. Now if we appreciate the cross examination of PW2, PW2 had given altogether different facts when he deposed "...accused Bhure was brought by us along with police on 13.8.99 at PS Shahdara and accused Bhure told that my son had been kidnapped by Sangeeta...." . Moreover in further cross examination PW2 has also stated that accused Bhure and Sangeeta was arrested by police and were also taken to the village of accused Bhure in the night of 12.8.99 by another Tata Sumo. Further cross examination of PW2 would reveal that witness has even testified that mother of Seeta was also arrested and accused Sheeshpal was also given beatings upon which, Sheeshpal made the disclosure statement. These contradictions in the evidence of PW2 are on material aspects and clearly create doubt as to the veracity of the witness. This court is well aware that minor contradictions may not be sufficient to discard the evidence of any witness but if we go through the evidence in totality, one can easily entertain the suspicion as to the very version with which prosecution has alleged.
FIR NO. 331/99 page 10of17 pages 17 Matter can be appreciated from another angle in the village Nagar as
per prosecution version accused Seeta was found having a child on her lap and upon identifying by the complainant, child was recovered and thereafter accused Seeta was arrested . But if we go through the evidence of PW6 Inspector Rohtash Kumar he has stated that they had gone to PS Fatehpur Sikri , Village Nagar where Sangeeta was found with the child Sunny on her lap. Although PW6 has tried to explain in the later portion of his evidence that name of the lady from whose custody the child was recovered is infact Seeta but if we go through the evidence of PW8 HC Hridesh Kumar even this witness has also testified on oath that they found the child from the possession of accused Sangeeta. PW8 has even stated that when IO made the inquiries from Sangeeta she made the disclosure statement Ex. PW2/K. Now this version of PW6 and PW8 is altogether contradicted to the prosecution evidence.
18 Besides this above said material contradictions if we appreciate the evidence of PW2, PW5, PW6 and PW8 it would be evident that it was accused Seeta who was allegedly found in possession of child Sunny and upon which, she was arrested. Prior to that, accused Sheeshpal who accompanied the police party from Village Neoli to Village Nagar was also arrested. Evidently, child was not with accused Sheeshpal . It is only after the disclosure statement of accused Seeta Ex. PW2/D accused Sheeshpal was arrested in UP itself but it is hard to understand as to when in the absence of any consequent recovery of disclosure statement of accused Seeta how can that disclosure statement of accused Seeta be ground for arrest of FIR NO. 331/99 page 11of17 pages accused Sheeshpal. Whereas, PW2 Bijender Singh had stated in cross examination that Sheeshpal was arrested and was given beatings by the police and upon disclosure made by accused Sheeshpal, police went to the village of mother of accused Seeta where from child was recovered. Thus evidence of PW2 also contradict even as to who was arrested first. But one thing is very clear that evidence on the record does not establish any legal reasons for the arrest of accused Sheeshpal or even the arrest of accused Bhure and Sangeeta only on the basis of a simple disclosure statement.
19 Matter can be appreciated from another angle . Accused persons have been charged for offence under section 363 and 368/34 IPC . Offence of kidnapping has been defined in section 360 and 361 IPC. Section 361 provide for kidnapping from lawful guardianship. Whoever takes or entices any minor under sixteen years of age if a male under eighteen years of age if female or any person of unsound mind out of the keeping of lawful guardian is said to kidnap such minor or person from lawful guardianship.
20 Offence of kidnapping from lawful guardianship is defined by Section 361 of I.P.C. as:
"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 erkeeping of lawful guardian, is said to kidnap such minor or person from lawful guardianship."
Explanation : The words "lawful guardian" in this Section includes FIR NO. 331/99 page 12of17 pages any person lawfully entrusted with care and custody of such minor or other person.
Exception : The Section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child or who in good faith believed himself to be entitled to the lawful custody of such child unless such act is committed for immoral or unlawful purpose." 21 So in Section 361 which defines the offence of kidnapping from lawful guardianship all that is required is that a minor, under the age of 16 in case of a male and under 18 in case of female must be "taken and enticed"
from the keeping of lawful guardian. The gravamen of this offence lies in the taking or enticing of a minor under the ages specified in this section, out of the keeping of the lawful guardian without the consent of such guardian. The words "takes or entices any minor . . . . . . . . . . . . . . . . . . . . . . . . out of the keeping of the lawful guardian of such minor" in Section 361, are significant. The use of the word "Keeping"
in the context connotes the idea of charge, protection, maintenance and control; further the guardian's charge and control appears to be compatible with the independence of action and movement in the minor, the guardian's protection and control of the minor being available, whenever necessity arises. On plain reading of this section the consent of the minor who is taken or enticed is wholly immaterial: it is only the guardian's consent which takes the case out of its purview. Nor is it necessary that the taking or enticing must be shown to have been by means of force or fraud. Persuasion by the accused person which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardian would be sufficient to attract FIR NO. 331/99 page 13of17 pages the Section.
22 In State of Haryana V Raja Ram, AIR 1973 SC 819 - It was observed "The gist of offence of kidnapping is taking or enticing away of minor out of keeping of lawful guardian. Kidnapping within the meaning of Section is effected not only by taking or enticing away a person but also by alluring such person to go away from the protection of the guardian." The position was again reiterated in Thakorlal D. Vadgama v. The State of Gujarat AIR 1973 SC 2313 wherein it was, inter alia, observed as follows :
"The expression used in Section 361, I. P. C. is "whoever takes or entices any minor". The word "takes"
does not necessarily connote taking by force and it is not confined only to use of force, actual or constructive. This word merely means, "to cause to go," "to escort" or "to get into possession". No doubt it does mean physical taking, but not necessarily by use of force or fraud. 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. FIR NO. 331/99 page 14of17 pages are in our opinion, intended to be read together so that each takes to some extent its colour and content from the other. The statutory language suggests that if the minor leaves her parental home completely uninfluenced by any promise, offer or inducement emanating from the guilty party, then the latter cannot be considered to have committed the offence as defined in Section 361, I. P. C."
23 Then accused have also been charged under section 368 IPC. Section 368 of Indian Penal Code provide:
"Whoever knowingly that any person has been kidnapped or has been abducted wrongfully conceals or confines such person shall be punished in the same manner as if he had kidnapped or abducted such person. With the same intention or knowledge or for the same purpose as that with or for which he conceals or detains such person in confinement".
24 So to constitute the offence u/s 368 following ingredients must be established (i) a person has been kidnapped or abducted by any one. (ii) Accused knew that such person has been kidnapped or abducted. (iii) Accused having such knowledge wrongfully conceals or confines such person. So knowledge that the person he is confining was kidnapped or abducted is necessary element determining the offence u/s 368. Besides FIR NO. 331/99 page 15of17 pages knowledge of kidnapping or abduction the accused must confine or conceal the person so kidnapped wrongfully.
25 Thus from the above discussion of law it is very much clear that there should be cogent evidence on the record showing taking off or enticing away of child to constitute the offence of kidnapping. In this case, unfortunately victim i.e. Child Sunny could not be examined as at the time of alleged crime child was only three years of age. But fact remains there is no clear direct evidence regarding essential ingredients of offence of kidnapping i.e. Enticing away or taking away of child out of keeping of lawful guardian of such minor. Merely because child was recovered form the possession of accused Seeta it cannot be concluded that offence of kidnapping is established under the Law. Not only qua accused Seeta and even against other accused. It be noted that prosecution is required to prove the charge beyond reasonable doubt. Proof of offence cannot be based on inferences to be drawn from one incomplete evidence. One incomplete evidence or circumstance may not be sufficient to connect the accused with the crime unless there is specific evidence showing proof of all essential ingredients of offence. In this case, necessary ingredients as discussed above have not been proved by the evidence of witnesses examined as well as on account of the fact that child could not be examined. It has already been pointed out by this court that whatever evidence has come on record same is also not most convincing or trustworthy. Evidence is marred by many contradictions and improbabilities and thus cannot be relied upon. Therefore the reasons discussed above, I find that prosecution version is FIR NO. 331/99 page 16of17 pages surrounded by many doubtful circumstance, the benefit of which has to be given to the accused persons. Consequently accused persons stand acquitted. Their bail bond and surety bonds stand cancelled and discharged.
File be consigned to record room.
ANNOUNCED IN OPEN COURT ON 27.4.2012 (SHAILENDER MALIK) ACMM-II, North East, KARKARDOOMA COURTS:
DELHI FIR NO. 331/99 page 17of17 pages