Delhi District Court
Fir No. 125/2018, Ps : Ndrs State vs . Vidhya Bhushan Ram on 5 September, 2019
FIR No. 125/2018, PS : NDRS State Vs. Vidhya Bhushan Ram
IN THE COURT OF MM08 (CENTRAL DISTRICT)
TIS HAZARI COURTS COMPLEX, DELHI.
Presiding Officer: Dinesh Kumar, DJS.
IN THE MATTER OF :
State Vs. Vidhya Bhushan Ram
FIR No. 125/2018
PS : NDRS
U/s 363/365 IPC
CNR No. DLCT020022962019
Date of Institution : 19.01.2019
Date of reserving of order : 16.08.2019
Date of Judgment : 05.09.2019
JUDGMENT
1. Serial No. of the case : 797/2019
2. Name of the Complainant : Ms. Sakina Begum
3. Date of incident : 17.11.2018
4. Name of accused :
Vidhya Bhushan Ram S/o Chandrika
Ram, R/o Village Narhan, PS
Raghunathpur, District Siwan, Bihar.
5. Offence for which chargesheet
was filed : 363/365 IPC.
6. Offence for which charge
has been framed : 363/365 IPC
7. Plea of accused : Not guilty
8. Final Order : Convicted
9. Date of Judgment : 05.09.2019
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FIR No. 125/2018, PS : NDRS State Vs. Vidhya Bhushan Ram
BRIEF REASONS FOR ORDER:
1. Mr. Vidhya Bhushan Ram, the accused herein, has been chargesheeted for the offence punishable under Section 363/365, the Indian Penal Code (45 of 1860) (hereinafter referred to as "IPC").
2. The case of the prosecution is that on 17.11.2018, complainant Smt. Sakina Begum had come at New Delhi Railway Station alongwith her minor son named Ms. Soheb, aged 4 years. She had sat in the waiting room. The accused was also sitting there. He started talking with the complainant. After sometime, the accused had taken his son under the pretext to purchase some biscuits for him. However, he did not return. After waiting for longtime, she made a complaint to the police. On the basis of information, present FIR was registered. During investigation, the accused was arrested. The child was recovered from District Sikar Rajasthan at the instance of the accused. After completion of investigation final report was prepared by the IO and the accused was charge sheeted for the offence punishable under Section 363/365 IPC.
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3. After perusing the record, cognizance was taken by the Court. The accused was produced in the Court. Compliance of Section 207, Criminal Procedure Code, 1973 (hereinafter referred to as 'Cr.P.C.) was done. After hearing the parties, charge for the offence punishable under Section 363 and 365 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
4. The prosecution has examined as many as 08 witnesses to prove its case against the accused.
5. PW1 Sh. Israr Babu is the Alternate Nodal Officer Vodafone Idea Ltd. He has produced the record pertaining to mobile numbers 9643416962 & 7673835479. As per record, mobile number 9643416962 was issued in the name of Sakina Begum. The eKYC customer application form is Ex. PW1/A (colly 3 pages), call detail record (CDR) w.e.f., 15.11.2018 to 26.11.2018 is Ex. PW1/B (colly 4 pages) alongwith certificate under Section 65B of Indian Evidence Act is Ex. PW1/C. As per record, mobile number of 7673835479 was issued in the name of Akhilesh Singh. The e KYC customer application form (CAF) is Ex. PW1/D (colly 3 pages), call detail record (CDR) w.e.f., 15.11.2018 to 26.11.2018 is Ex. PW1/E 3 of 22 MM08 (C)/THC/Delhi/05.09.2019 FIR No. 125/2018, PS : NDRS State Vs. Vidhya Bhushan Ram (colly 3 pages) alongwith the 65 B certificate of Indian Evidence Act is Ex. PW1/F.
6. PW2 Ms. Sakina Begum is the complainant. She has deposed that at around 6 months before 17.11.2018, she had come to meet her sister at Metro Vihar, Delhi in search of work. She did not find work so she was going back to her home in Rajasthan. She had come at platform no. 1 of NDRS at around 9 a.m. She had lost her purse and therefore she was waiting in the waiting room alongwith her four years old son. There was another person in waiting room who offered her some food and became friendly to her. At around 06:45 p.m., her son started crying. Then the said man took her son to purchase him biscuits to make him stop crying. The said boy did not return for a long time so she got worried. Then she started looking for child. Even after efforts, she could not find her child. She then started receiving calls from a mobile having last two digits 79. The calls pertained to her missing child. The accused had said on phone that he would return her child and asked her to come at a specific place. However, she did not find him or her child at the place where the accused had asked her to come. She got 4 of 22 MM08 (C)/THC/Delhi/05.09.2019 FIR No. 125/2018, PS : NDRS State Vs. Vidhya Bhushan Ram worried. She went to Police Station and filed missing complaint of her child. Her complaint was recorded, which is Ex.PW 2/A. The police then checked the CCTV footage but no clue was found. The police prepared the site plan at her instance which is Ex. PW2/B. The child was found on 25.11.2018 at the house of the brother of the accused. The identification memo of her child was prepared which is Ex. PW2/C. The child was handed over to her vide handing over memo Ex. PW2/D.
7. PW3 HC Jaibir is the police official who had joined the investigation. He has deposed that he alongwith ASI Anuj and ASI Yad Ram had left for Sikar, Rajasthan for the apprehension of the accused and recovery of the victim child. They reached at R.K. Ashram Metro Station where one boy met with the IO and informed him that the accused would come at Metro Station in a few minutes. Thereafter, IO shared this information with SHO, PS :
NDRS. Thereafter, he alongwith ASI Anuj started waiting for the accused near abovesaid metro station in civil dress. At about 08:45 p.m., the IO had pointed towards one person and they apprehended him and produced before the IO. The IO made inquiry from him. He had stated that 5 of 22 MM08 (C)/THC/Delhi/05.09.2019 FIR No. 125/2018, PS : NDRS State Vs. Vidhya Bhushan Ram he had kidnapped the victim child and the victim child was kept in the custody of his brother at Sikar, Rajasthan. The IO had also made inquiry regarding the mobile phone which he had used to make call to the complainant. He replied that he had sold the mobile phone to one Rickshaw wala unknown to him. Thereafter, he produced one SIM Card No. 7673835479 and stated that he used to make the call to the victim's mother with that number. Thereafter the IO matched the abovesaid number with the CDR already obtained and they matched. Thereafter the IO took the SIM Card in a match box and prepared pullanda and sealed it with the seal of "YR". Thereafter, same was seized vide memo Ex. PW3/A. Thereafter, the IO arrested the accused vide memo Ex. PW3/B. His personal search was also conducted vide memo Ex.PW3/C. The IO also recorded the disclosure statement of the accused which is Ex.PW3/D. Thereafter, the IO informed the Senior Officers about the arrest and they left for Sikar, Rajasthan for recovery of victim child. They reached at Sikar Rajasthan in the morning. The accused had taken them at a place called Ringus, Sikar Rajasthan, where there were 34 rooms. The accused pointed towards one of those 6 of 22 MM08 (C)/THC/Delhi/05.09.2019 FIR No. 125/2018, PS : NDRS State Vs. Vidhya Bhushan Ram rooms and stated that he had left the victim child with his brother. Thereafter, the IO opened the shutter of the said room. There they found the victim child alongwith the brother of the accused. The IO inquired from the victim child upon which he stated his name as Sohail. Thereafter, the IO prepared the pointing out memo and recovery memo of the child which is Ex. PW 3/E. Thereafter the IO informed the recovery of the child to Sr. Officers. No public persons were present the place of the recovery of the child. Thereafter, the accused was put in muffled face and brought back to Delhi alongwith the victim child.
Thereafter the complainant had identified her victim child and the IO prepared the identification memo which is Ex.PW2/C. Thereafter at the instruction of the IO, the accused took the IO to the spot where he had kidnapped the victim child. The IO prepared the pointing out memo at the instance of the accused which is Ex. PW3/F. The accused was produced before Ld. Duty MM and he was sent to J/C. The Duty MM had also ordered to hand over the custody of the victim child to his mother/complainant. The IO had also got conducted the medical examination of the accused and the victim child. The custody of the victim 7 of 22 MM08 (C)/THC/Delhi/05.09.2019 FIR No. 125/2018, PS : NDRS State Vs. Vidhya Bhushan Ram child was handed over to his mother/complainant. The IO recorded his statement under Section 161 Cr.PC and discharged him.
8. PW4 Sh. Kedar Ravi Das is friend of the accused. He has deposed that he had been working as a e rickshaw driver. He had become acquainted with the accused. On 17.11.2018, the accused had come with a child of 34 years old and told that he had found the child at New Delhi Railway Station without his parents. He also requested to keep the child in his house and he agreed. After two days the accused again came and took the child with him. After 34 days the police had come and made inquiry regarding the child. Thereafter, he identified the accused at R. K. Ashram Metro station.
9. PW5 Sh. Dharmender Kumar Pareek is the Official from the Office of SubRegistrar, Sanganer Zone, Nagar Nigam Jaipur. He has brought the birth certificate of victim Shoaib Ali. The birth certificate of Shoaib Ali was issued from SubRegistrar, Birth and Death, Sanganer Zone. The attested copy of the said certificate bearing no. 62803685/17 attested by Ms. Durga Choudhary, Deputy Commissioner, Sanganer Zone, Jaipur is Ex. PW5/A. 8 of 22 MM08 (C)/THC/Delhi/05.09.2019 FIR No. 125/2018, PS : NDRS State Vs. Vidhya Bhushan Ram
10. PW6 Sh. Mukesh is brother of the accused. He has deposed that accused Vidya Bhushan is his elder brother. When he was present at Jaipur, one day his brother accused Vidya Bhushan Ram had come there and he had brought a child. He had told him that the said child was found at New Delhi Railway Station. He had said that he would leave the child with him and that he would make efforts to trace his family members to return the child. Thereafter he left the child with him and himself came to Delhi. After 4 days some police officials had come at his home alongwith his brother Vidya Bhushan Ram. He returned the child to them. He had told the entire incident to the police officials. Thereafter they had returned to Delhi with the child and his brother.
11. PW7 ASI Anuj Tomar is the police official who had joined the investigation with the IO. He has deposed similar to PW3 regarding apprehension of the accused, recovery of child and preparation of documents. The witness has identified the victim child from the photographs which are Ex. PW4/A (colly). The witness has also identified the SIM which was seized by the IO. The same is Ex.P1.
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12. PW8 ASI Yadram is the IO. He has deposed, interalia, on 17.11.2018, at about 07:307:45 p.m., one lady namely Shakeena Begum had come at the PS and made complaint regarding missing of her child. After making initial inquiry, he had prepared a rukka on the complaint of the complainant which is Ex. PW2/A. The rukka is Ex. PW8/A. FIR was registered. He prepared the site plan at the instance of complainant which is Ex. PW2/B. He obtained the CDR of the mobile number which was provided by the complainant. It was observed that one person named Kedar Ravidas was one person with whom the accused communicated frequently. Kedar Ravidas was apprehended and inquiry was made. He informed about accused Raju. Kedar Ravid Das also informed that one child was alongwith the accused and that he had kept the child for two days in his Jhuggi and then the child was taken by the accused to Sikar, Rajasthan. On 24.11.2018 Kedar Ravidas came at the PS. He informed that accused Raju had left for Sikkar Rajasthan and if raid be conducted he could be traced. They were about to leave for Rajasthan in the evening. Raiding party went near R.K. Ashram Metro Station and met with Kedar Ravidas. Kedar Ravidas 10 of 22 MM08 (C)/THC/Delhi/05.09.2019 FIR No. 125/2018, PS : NDRS State Vs. Vidhya Bhushan Ram informed that the accused was about to come near R.K. Ashram Metro Station. Two police officials who were in civil dress were waiting there. At the instance of Kedar Ravidas, accused Raju was apprehended by police personnel. After interrogation, he informed that the child which was kidnapped by him from Paharganj side of NDRS was kept at Rajasthan alongwith his brother Mukesh. The accused told his name as Vidya Bhushan Ram. The accused was arrested vide memo Ex. PW3/B and personal search was conducted vide memo Ex. PW3/C. Disclosure statement Ex. PW3/D was recorded. The accused produced one SIM Card. The number of recovered SIM Card was checked after putting it in mobile phone and it was similar number as in the CDR and FIR. The SIM card was seized vide memo Ex. PW3/A. After intimating the position to SHO, they left for Sikar Rajasthan. At the instance of the accused, the child was recovered. Brother of the accused was present there. Pointing out memo was prepared. Which is Ex. PW3/E. The brother of the accused was examined there and his statement was recorded. The child was taken in custody and he was brought to Delhi. The local police official could not be joined during 11 of 22 MM08 (C)/THC/Delhi/05.09.2019 FIR No. 125/2018, PS : NDRS State Vs. Vidhya Bhushan Ram investigation due to shortage of time. They came to Delhi in the afternoon at about 4 p.m. The child was identified by the complainant. The identification memo is Ex. PW2/C. The pointing out memo of the spot of the incident was prepared which is Ex. PW3/F. The child and the accused were medically examined. The accused and the child were produced before Ld. Duty MM at the residential complex Gulabi Bagh. The child was handed over to his mother as per instructions vide memo Ex. PW2/D. The accused was sent to Tihar Jail. He had recorded the statement of the witnesses in the PS.
13. The witnesses were cross examined. The accused admitted the registration of FIR which is Ex.A1 and certificate under Section 65B Indian Evidence Act which is Ex. A2.
14. The accused was examined under Section 313 Cr.P.C., read with Section 281 Cr.P.C. Substance of the incriminating material was put to him. He would state that he had not kidnapped the child. He could not trace the mother of the child. He did not visit the police station under the fear.
15. The accused moved an application under 12 of 22 MM08 (C)/THC/Delhi/05.09.2019 FIR No. 125/2018, PS : NDRS State Vs. Vidhya Bhushan Ram Section 315 Cr.P.C., for examining himself as defence witness. The accused examined himself as DW1. He would depose that on the relevant day, he was waiting at New Delhi Railway Station for passenger. He drives a TSR. One lady was sitting there alongwith a child. That lady was weeping. She was trying to call someone through her mobile phone. He asked her as to why she was weeping and whether she needed any help. She told that she was trying to contract her husband, however, he was not picking the phone. Thereafter, he told her to call her husband from his phone. She called her husband through his phone. However, he did not pick the phone. Thereafter, one taxi driver gave Rs.200/ for her transportation and food. Upon further inquiry, she told that her husband lived in Gurugaon. After sometime he received a call from her husband and the complainant talked to him. Thereafter that lady told him to buy chips for her child. He took the child and purchased the chips from the store. When he was returning to the spot, he saw that some passengers were quarreling with a rickshaw puller. He stopped there. When he returned at the spot the lady was not found there. He tried to search her in the 13 of 22 MM08 (C)/THC/Delhi/05.09.2019 FIR No. 125/2018, PS : NDRS State Vs. Vidhya Bhushan Ram locality. However, she could not be traced. Thereafter, he made a call to his friend named Ajay and told the entire incident to him. In the meantime, he received a call from a new number, however, he did not pick the call. Thereafter he received 45 calls from new number. Finally he picked the call and the person handed over his phone to one lady who asked as to where he was and whether the child was with him. He told her to come at gate no. 2, New Delhi Railway Station. Thereafter, he alongwith his friend Ajay and child reached at gate no.2 at New Delhi Railway Station. However, the lady did not come. His friend suggested to take the child to home. When he reached at his home, he received a call from unknown number who asked about his location. The child had remained with him for one and half days. He had spent about Rs.800/ to Rs.900/ on food and clothing of the child. Thereafter, he called his younger brother and handed over the custody of child to him. He took the child to Jaipur. He called his brother Mukesh who asked his location. He told him that he was sitting at platform no. 16, NDRS. He told him to remain there and he would reach within 5 minutes. After 5 minutes he came in a TSR and shake hands with him. In 14 of 22 MM08 (C)/THC/Delhi/05.09.2019 FIR No. 125/2018, PS : NDRS State Vs. Vidhya Bhushan Ram the meantime, police officials in Civil uniform apprehended him and took to the PS. They made inquiry about the child. He told them that the child was with him. Thereafter 45 police officials took him to Jaipur at the house of his brother. There he produced the child from the custody of his brother. Thereafter, they brought back to Delhi.
16. The witness was crossexamined by Ld.APP. The accused did not examine any other witness in defence evidence. Therefore, matter was fixed for final arguments.
17. Ld. APP for the State would argue that the prosecution has proved its case beyond reasonable doubts. It has been proved that the accused had kidnapped the victim from the lawful guardianship of her mother. The accused himself has admitted his guilt in the defence evidence on oath. Hence, the prosecution has proved all the ingredients of the offences punishable under Section 363 & 365 IPC and the guilt of the accused has been proved beyond reasonable doubts. Hence, it is prayed, the accused may be convicted.
18. Ld. Defence counsel, on the other hand, would argue that the accused did not have any intention to 15 of 22 MM08 (C)/THC/Delhi/05.09.2019 FIR No. 125/2018, PS : NDRS State Vs. Vidhya Bhushan Ram kidnap the child. He had kept the child with intention to trace her mother who could not be traced due to various reasons. The accused did not approach the police under the fear. Hence, it is prayed that the accused may be acquitted.
19. I have heard the rival submissions and carefully perused the material available on record.
20. In a criminal case the burden is on the prosecution to prove its case beyond reasonable doubts before the accused is asked to put her defence.
21. In the present case, the accused has been charged for the offence punishable under Section 363 & 365 IPC. Section 363 IPC provides punishment for kidnapping any person, interalia, from lawful guardianship. Section 359, IPC provides that kidnapping is of two kind, i.e., kidnapping from India and kidnapping from lawful guardianship. Section 360 IPC defines kidnapping from India while Section 361, IPC defines kidnapping from lawful guardianship. The main ingredients of Section 361, IPC are:
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1. There must be taking or enticing of a minor or of a person of unsound mind;
2. the minor must be under 16 years of age, if a male or under 18 year of age if female;
3. the taking or enticing must be out of the keeping of the lawful guardian of the minor or person of unsound mind; and
4. the taking or entice must be without the consent of such guardian.
22. The first ingredient of kidnapping is taking or enticing of minor. 'Taking' implies neither force nor misrepresentation. If a girl of less then 18 years, or a boy of less than 16 years of age, is taken away from the keeping of her/his lawful guardian, the offence of kidnapping is established. The prosecution must show that the accused took some active part in the child leaving his lawful guardians custody.
23. Section 365 IPC provides punishment for kidnapping or abducting any person with intent to cause that person to be secretly and wrongfully confined.
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24. In the present case, it has been proved by the prosecution that victim Shoaib Ali was a minor on the date of alleged incident i.e., on 17.11.2018. PW5 Sh.
Dharmender Kumar, UDC from the office of SubRegistrar, Jaipur has produced the attested copy of the birth certificate of the victim. The date of birth of the victim is proved to be 29.03.2014. Thus it is proved that on 17.11.2018 victim Soheb Ali was only four years and 8 months old.
25. It has been alleged by the prosecution that the accused had taken victim Soheb Ali, aged about 4 years, out of the keeping of the lawful guardian, Ms. Sakina Begum, the mother of the victim.
26. The accused himself had entered into witness box and he has admitted on oath that he had taken the child with him for providing him some snacks. He has also admitted that the child was not returned to the complainant by him. He has only stated that he did not find the complainant on the spot where he had left her. However, the subsequent conduct of the accused as stated by him in his testimony does not show that he was making efforts to trace the complainant.
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27. It is settled position of law that taking need not be by force or my misrepresentation or fraud. The word "take" means only physical taking which may not necessarily be by use of force or fraud. The purpose of the law is to protect minor children from being seduced for improper purpose and to protect the rights and privileges of guardians having the lawful charge or custody of their minor children. It is also worth noting that the consent of the minor, who is taken or enticed, is wholly immaterial.
28. A mother is always a lawful guardian of a minor. In the present case, it has been proved by the prosecution that the accused had taken the minor with him, at the first instance, with the permission of the complainant, the natural guardian of the victim. However, during that period also custody of the minor was with the complainant and she remained to be lawful guardian of the minor victim. The complainant did not give her consent to keep the child away from her for such a long period as in the present case. The accused himself has stated in his examination in chief as DW1 that he had stopped on his way to the Railway Station when he saw a quarrel between passengers and a rickshaw puller. It was 19 of 22 MM08 (C)/THC/Delhi/05.09.2019 FIR No. 125/2018, PS : NDRS State Vs. Vidhya Bhushan Ram natural for the complainant to become worried about safety of her child and to leave the place, where she was sitting, to trace her missing child and the accused. It was the duty of the accused to take the child to the nearest police station as soon as possible after he realized that the complainant was not traceable. However, the accused did not act like a prudent person. He rather took the child with him at his home. Thus, it has been proved beyond reasonable doubts that the accused had taken the minor victim Soheb Ali out of the keeping of lawful guardian of the victim without consent of the guardian.
29. The accused has stated in his statement that he did not have any intention to kidnap the child. Intention to kidnap is not a material fact required to be proved by the prosecution in order to prove guilt of the accused. In any case, intention is a fact to be gathered from the other facts of the case. However, the facts of the present case as available on record do not show that the accused did not have any intention to kidnap the child. As the record would reveal, the accused had taken the child to his home rather than going to a police station. He had kept the child at his home. Thereafter, he had transferred the child 20 of 22 MM08 (C)/THC/Delhi/05.09.2019 FIR No. 125/2018, PS : NDRS State Vs. Vidhya Bhushan Ram from Delhi to Sikar Rajasthan. He did not return the child to the complainant despite speaking with her on phone several times. No doubt there is no allegation of demand of any ransom money. However, this fact does not show that the accused had taken the child in good faith. Now a days a child is kidnapped for various other purposes including begging, organ selling, child labor and paedophilia etc. Therefore, I am of the opinion that the submission of the Ld. counsel for accused has no merits.
30. Further, it has also been proved on record that the accused had kidnapped the child and kept him secretly at Sikar Rajasthan. The child was wrongfully confined there. The material on record is sufficient to prove beyond reasonable doubts that there was an intention of the accused to cause the minor child to be confined wrongfully and secretly. The accused had kept the child first at his home secretly. Thereafter, he had taken the child to Rajasthan Sikar and wrongfully confined him there secretly. All these facts are sufficient to prove beyond reasonable doubts the ingredients of offence punishable under Section 365 IPC.
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31. In the light of the discussion hereinabove, I hold that the prosecution has proved beyond reasonable doubts that accused Vidya Bhushan Ram had taken minor Suheb Ali out of the keeping of his natural and legal guardian, complainant Ms. Sakina Begum, without her consent and therefore he had kidnapped the minor from lawful guardianship. It has also been proved by the prosecution beyond reasonable doubts that the accused Vidya Bhushan Ram had kidnapped the minor with intent to cause him to be secretly and wrongfully confined. Hence, the accused is found guilty and he is accordingly convicted for the offences punishable under Section 363 & 365 IPC.
32. The parties be heard on quantum of sentence.
Copy of the judgment be free of cost to convict.
Digitally
signed by
DINESH
DINESH KUMAR
KUMAR Date:
2019.09.05
17:28:48
+0530
Pronounced in the open Court on (Dinesh Kumar)
th
this 05 day of September 2019 MM08 (Central)
Tis Hazari Courts, Delhi.
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