Delhi District Court
Criminal Case/299/2003 on 31 May, 2013
IN THE COURT OF METROPOLITAN MAGISTRATE 02
SHAHDARA , KARKARDOOMA COURTS, DELHI
Presided by : Ms. Susheel Bala Dagar
FIR No. : 299/03
PS : Seema Puri
U/s 363 IPC
Unique I.D. No. 02402R0149622003
State v. Sibbu @ Sabbu
JUDGMENT:
a)Serial No of the case : 10 SP/13
b)Date of commission of offence : 25.08.2003
c)Name of the complainant : Kale S/o Sheik Ismail
d)Name parentage and : Sibbu @ Sabbu
address of the accused S/o- Anwar R/o-E-44/A-159,
Jhuggi, New Seemapuri, Delhi
e)Offence complained of : U/s 363 IPC
f)Plea of accused : Pleaded not guilty
g)Date on which judgment was
reserved : 31.05.13
h)Final Order : Acquitted
i)Date of decision : 31.05.13
Brief Statement and Reasons for Decision:
1. Briefly stated the facts of the case as alleged by the prosecution and as unfolded from the chargesheet are that on 25.08.2003 at about 11 a.m accused Sibbu@Sabbu kidnapped Ruksana and Putty, the minor daughters of the complainant Sh. Kale from his lawful guardianship and thereby committed an offence punishable under section 363 IPC.
2. On completion of the investigation, chargesheet was filed FIR No. 299/03 State v. Sibbu @ Sabbu Page No. 1 of 7 and the copy of the challan and the documents annexed therewith were supplied to the accused. Prima facie charge u/s 363 IPC was made out against the accused, namely, Sibbu@Sabbu. Accordingly, on 09.08.2004 the charge was framed by the Ld. Predecessor of the Court. Accused pleaded not guilty and claimed trial to the said charge. Thereafter, the case proceeded for prosecution evidence.
3. In order to prove its case, the prosecution examined sixteen witnesses.
PW1 Puty stated that on 25.08.2003 she alongwith her sister Ruksana had gone to Kanpur for tour along with accused Sibbu. She correctly identified the accused in the Court. She stated that they left around 11 a.m. on that day and reached at the shop of the accused from where they made call to his aunt(Phufi). The accused had already programmed to go to Kanpur. PW-1 and her sister insisted him to take them along with him to Kanpur. On the next day they reached at Kanpur where they stayed in the house of Phufi of accused. They remained in Kanpur for 2-3 days and visited many places. In Kanpur PW-1 and her sister used to sleep with Aunt(Phufi) of accused in a separate room while the accused used to sleep in the other room. On the third day they came back to Delhi. When they were coming towards their house from Kanpur, one known person informed to the police. The police recorded statement of PW-1 and her statement was also recorded before Magistrate. PW-1 stated that they got ready to visit Kanpur with the accused of their own and he did not induce them to go with him.
FIR No. 299/03 State v. Sibbu @ Sabbu Page No. 2 of 7 PW-2 Rukhsana, the elder sister of PW-1, corroborated the version of PW-1. PW-2 stated that phufi of the accused took them to Makanpur i.e. at the house of grandmother of the accused where also they slept in a separate room.
PW-3 Sh. Kale is the father of the kidnapped girls. He stated that on 25.08.2003 at around 11 a.m, he found both of his daughters missing. When he could not trace them despite best efforts, he made complaint to the police and expressed his suspicion on the accused. He got the FIR registered, Ex. PW-3/A. On 31.08.2003 his daughters were recovered by the police and the accused was arrested vide arrest memo Ex. PW-3/B and searched vide personal search memo Ex. PW-3/C. PW-4 Sh. Naeem stated that on 25.08.2003 he was in Seemapuri and was going to fill petrol in his bike. Near the Movie Palace, he saw the accused Shibu along with two girls. The accused told him that they were going to visit some place.
PW-5 constable Kaare Lal participated in the investigation along with SI C. M. Meena and supported the prosecution version. PW-6 Smt. Sairun is the mother of the missing girls. She also supported the prosecution version. PW-7 W.Ct. Vimlesh joined the investigation with the IO and went to the GTB hospital along with the missing girls where they were medically examined. She proved duly sealed slide and sample seals Ex PW7/A and Ex PW7/B. PW-8 ASI Badloo Singh recorded the statement of the complainant, Ex. PW-3/A and registered the FIR.
PW-9 HC Rajbir Singh, went alongwith the IO on 31.08.2003 to FIR No. 299/03 State v. Sibbu @ Sabbu Page No. 3 of 7 the GTB hospital and seized the samples vide memo Ex. PW-9/A. PW-10 Sh. Hemant Tekwani, record clerk, GTB hospital, Delhi, proved the MLC register Ex. PW10/A. PW-11 Smt. Annapurna Pandey, Principal, MCD Primary School, Dilshad Colony, Delhi, proved the birth certificate of the Ruksana, Ex. PW-11/A. PW-12, Dr. Shuchi Bhatt, Radilologist, GTB hospital, Delhi, proved the X-ray report for bone age determination of Putty, Ex. PW-12/A as per which the bone age of the missing girl was in between 16-17 years. PW-13 Ms. Poonam Chaudhary, Ld. ADJ, Delhi, proved the statement of both the prosecutrix recorded under section 164 Cr.P.C. as Ex. PW-13/A and the certificate to this effect Ex. PW-13/B. PW-14, Dr. Sanjeeta Behra, CMO, proved the MLC of missing girls namely Rukhsana and Sahida @ Putti as Ex. PW-14/A and Ex. PW-14/B respectively.
PW-15 Inspector C. M. Meena, deposed that on 30.08.2003 he along with the complainant inquired from the neighbours as well as mother of the missing girls. One of the neighbour Sh. Naeem informed that he had seen the accused along with both the said daughters of the complainant on 25.08.2003 in the evening hours. At about 11 a.m. near jhuggi of Dilshad Colony, one minor boy aged about 7-8 years, met them and informed that accused along with the girls were sitting in the kabristan. On this, they reached at the kabristan. The complainant identified both the girls and the accused. He recorded the statement of both the missing girls and interrogated the accused and arrested him. Thereafter, they reached at police station where he instructed a lady constable Vimlesh, constable Kare lal and Constable FIR No. 299/03 State v. Sibbu @ Sabbu Page No. 4 of 7 Rajbir to take the girls as well as accused to the GTB hospital for their medical examination. He correctly identified the accused person in the Court. PW-16 HC Nawab Singh, proved the entry in the register No. 19 as Ex. PW-16/A. Thereafter Prosecution Evidence was closed.
4. All the incriminating evidence was put to the accused Sibbu @ Sabbu and his statement U/s 313 Cr.PC was recorded. In reply to the incriminating evidence accused denied the allegations against him. He stated that the victim/complainant are his neighbours. He was going to Kanpur. He told Ruksana and Putty about the same. Both insisted on accompanying him. He refused to take them alongwith but still they accompanied him to Kanpur. When they reached back from Kanpur, the police apprehended him. He did not lead any defence evidence and the matter was listed for final arguments.
5. I have heard Ld. APP for the State and Sh. Akhtar Samim Ld. Counsel for the accused and perused the Court record. In order to prove the case, the prosection has to prove the following ingredients of section 363 IPC which are stated as under:
i)The victim was a minor being below 16, if a male and being below 18, if a female.
ii) The victim kidnapped was in the keeping of a lawful guardian.
iii) The accused took or enticed away the victim from such keeping of lawful gurdian.
iv) The accused did so without the consent of lawful guardian.
6. In the present case, PW1 stated that the accused did not induce her to go to Kanpur with him. She and her sister agreed to accompany FIR No. 299/03 State v. Sibbu @ Sabbu Page No. 5 of 7 him to Kanpur on their own freewill. Her elder sister Ruksana asked her to accompany her to Kanpur. She treated the accused as a brother. PW2 also stated that the accused did not entice or induce them to accompany him. She asked her younger sister Putty to accompany her. As she treated the accused as a brother that is why she went with him. The police apprehended them from near their house near Kabristan. PW3 Kale admitted that he had lodged the report on mere suspicion.
7. In the present case even though both the girls were of age of minority but they had attained enough maturity to exercise their own discretion. As per the bone age determination report Ex PW12/A the age of putty is between 16-17 years. Putty is younger to Ruksana as stated by the prosecution. In these circumstances it is logical to arrive at a conclusion that Ruksana who is the elder one was a major at the time of alleged incident. Further even if it is presume that both the girls were of age of minority, they were never enticed or taken away by the accused. The accused merely allowed the two girls to accompany him to Kanpur. Both PW1 and PW2 have corroborated each others version as well as the version of the accused. Hence it is clear that there was no allurement from the side of the accused given to the minor girls to leave the lawful guardianship.
8. As held by the Hon'ble Supreme Court in the case of S. Vardarajan v. State of Madras, AIR 1969, SC 942; Thakorlal D. Vindgona v. State of Gujarat AIR 1973 SC 2313 and State of Haryana v. Raja Ram (1973) I SCC 544 the object of section 363 IPC is to protect the minor children from being seduced for illicit FIR No. 299/03 State v. Sibbu @ Sabbu Page No. 6 of 7 purposes and also to protect the right and privileges of guardinas having lawful custody of their wards. The gist of offence of kidnapping is taking or enticing away of a minor within a specified age limit or a person of unsound mind out of keeping of lawful guardian. There is distinction between taking and allowing a minor to accompany a person. Where a minor has attained the age of discretion, leaves the lawful custody of his or her own accord, the accused can not be charged with the offence of kidnapping.
9. Keeping in view the above mentioned case laws, it is clear that the main ingredient of taking and enticing by the accused has not been proved by the prosecution in the present case. The accused had not played any active part in the moving out of the gurdianship by the minor. In these circumstances and for the above mentioned reasons, offence U/s 363 is not proved against the accused. Hence accused stands acquitted. He is directed to furnish bail bonds in compliance of section 437 A Cr.PC. At request of the accused the earlier bail bonds furnished are extended for a period of 06 months. File be consigned to record room.
Announced in the open Court Susheel Bala Dagar
on this 31st day of May, 2013 Metropolitan Magistrate
Karkardooma Courts, Delhi.
All pages signed.
FIR No. 299/03 State v. Sibbu @ Sabbu Page No. 7 of 7