Delhi District Court
State vs Firoz @ Babbal on 14 November, 2014
IN THE COURT OF MS. SARITA BIRBAL, ADDITIONAL
SESSIONS JUDGE, (SPECIAL FAST TRACK COURT), EAST,
NORTH EAST & SHAHDARA DISTRICTS, KARKARDOOMA
COURTS, DELHI
Unique Case I.D. No.02402R0038562012
SC No.235/13 Date of institution : 31.07.2013
FIR No. 22/08 Date on which final
PS. Bhajanpura arguments were
U/S.363/328/364A/34 IPC heard : 13.11.2014
& 344/376/506 IPC Date of judgment : 14.11.2014
State Versus Firoz @ Babbal
S/o Mustaq Ahmad
R/o H. No. D-44, Gali No.4,
D-Block, Kabir Nagar, Delhi.
JUDGMENT
1. The case of the prosecution as disclosed in the chargesheet is that on 10.01.2008, father of the prosecutrix came to the police station Bhajanpura and lodged a missing report regarding the prosecutrix. In the complaint he stated that he is running a Parchoon shop. Her daughter (prosecutrix) aged about 17 years went to her school namely Rajkiya Uchchatam Madhyamik Balika Vidhyalaya, C-1, Yamuna Vihar, Delhi on 09.01.2008. She SC No. 235/13 State vs. Firoz etc Page 1 of 18 was present at the school during the school hours but thereafter she did not come back to her home. He further stated that he had earlier made a complaint regarding missing of her daughter vide DD No. 57B dated 09.01.2008 about 6.30 pm at PS Bhajanpura. He had made efforts to trace out her daughter but she was not traceable. He also stated that some unknown person had kidnapped her daughter after enticing her.
2. On the basis of the complaint, an FIR u/s 363 IPC was got registered and the investigation of this case was handed over to SI Hari Singh. During investigation, the complainant informed the police that he has a doubt that accused Firoz has kidnapped his daughter. During investigation, IO found that co-accused Vishant @ Jeetu was also missing from his house. From the call details of the prosecutrix, it was revealed that the prosecutrix was with the accused persons. All India WT messages were flashed. Birth certificate of the prosecutrix from her school was collected. Efforts were made to trace out the accused persons. Further investigation of this case was handed over to Inspector Krishan Lal. During investigation it was revealed that accused Vishant @ Jeetu and accused Firoz have taken the prosecutrix in a Wagon R car bearing no. DL-5CC-1031. The prosecutrix and the accused persons SC No. 235/13 State vs. Firoz etc Page 2 of 18 were apprehended from the said car at Ludhiana and they were brought to Delhi. Accused persons were arrested. Accused Vishant @ Jeetu was found to be a juvenile and he was produced before the Juvenile Justice Board and sent to the Observation Home. The prosecutrix and the accused persons were got medically examined. Statement of the prosecutrix u/s 164 Cr.P.C was got recorded by the learned MM and offences punishable under sections 376/364A/328/ 506 IPC were added in the FIR. Exhibits were deposited in FSL, Rohini for examination. After completion of investigation, chargesheet u/s 363/376/364A/328/506/34 IPC was filed against the accused persons.
3. Since the major offences in this case were triable by the court of Sessions, vide order dated 26.07.2013, the learned MM,N/E, Karkardooma Courts committed this case to the court of Sessions and on allocation, this case was assigned to this court.
4. Vide order dated 26.08.2013, charge u/s 363/328/364A/34 IPC and u/s 344/376/506 IPC was framed against the accused Firoz @ Babbal to which he pleaded not guilty and claimed trial.
5. After framing of the charge, this case was listed SC No. 235/13 State vs. Firoz etc Page 3 of 18 for prosecution evidence and summons were directed to be issued to the prosecutrix to appear as a witness in this case on her last known address. On 08.11.2013, the complainant (father of the prosecutrix) appeared in this court and stated that he does not know the present whereabouts of his daughter (prosecutrix) and he is unable to produce her for evidence. On 01.03.2014, the father of the prosecutrix again appeared in this court and stated that his daughter (prosecutrix) is not traceable for the last 3-4 years. He further stated that the prosecutrix has got married and he does not know about her present whereabouts. Under these circumstances, the prosecutrix was directed to be served through the concerned IO and DCP for 26.3.2014. On 26.03.2014, the report of the summons of the prosecutrix was received back with the remark that the prosecutrix is not traceable. Prosecutrix thereafter again three times was directed to be served through the concerned DCP. Every time the summons to the prosecutrix have been received back unserved with the report that she is not traceable. Thus the prosecutrix could not be served with the summons for appearance as a witness as her whereabouts are known. Thus, she has not appeared as a witness in this court.
6. Prosecution has examined fourteen witnesses in SC No. 235/13 State vs. Firoz etc Page 4 of 18 support of its case. These witnesses are father of prosecutrix as PW1, SI Hari Singh as PW2, ASI Tejpal Singh as PW3, Dr. Anshul Grover, Specialist Department of (OBS and Gyne) BJRM Hospital, Jahangirpuri, Delhi as PW4, HC Yatvir Singh as PW5, ASI Khagnesh Kumar as PW6, Inspector Krishan Lal as PW7, Dr. PK. Phukan, CMO, GTB Hospital, Delhi as PW8, Ct. Bijender Singh as PW9, Smt. Usha Kiran Madan, Lecturer English, Sarvodya Kanya Vidyalaya No.1, C-Block, Yamuna Vihar, Delhi as PW10, W/HC Reena as PW11, Sh. Lalit Kumar learned ADJ as PW12, Ct. Ravinder as PW13 and SI Shishu Pal as PW14.
7. After the evidence on behalf of the prosecution was closed, statement of accused u/s 313 Cr.P.C was recorded in which he denied the case of the prosecution. He stated that this case has been got registered at the instance of father of the prosecutrix in connivance with the police and that he never kidnapped/induced/enticed the prosecutrix at any point of time.
8. Since the prosecutrix has not deposed in this case, the only material witness who has personal knowledge about the facts of this case is PW1 (father of the prosecutrix) whose testimony shall be discussed at the later stage.
SC No. 235/13 State vs. Firoz etc Page 5 of 189. PW2 SI Hari Singh deposed that on 09.01.2008 DD No.57B Ex. PW2/A regarding missing of the prosecutrix was marked to him. WT message, MPS form was filled but she could not be found. FIR was registered and investigation was marked to him. He deposed that he alongwith Ct. Yogesh met the father of prosecutrix at his house and made enquiries from him. Father of the prosecutrix got suspicion on Firoz. He tried to trace out accused Firoz but he was not available at his house. Father and brother of the accused Firoz disclosed that he is missing from the house for the last 2-3 days. Call details of the mobile phones of prosecutrix, Vishant and Firoz were obtained but no clue was found. He also visited Dehradun and Varanasi to trace the prosecutrix and the accused but they could not be found. On 23.01.2008, the investigation was handed over to Inspector Krishan Lal.
10. PW3 ASI Tejpal Singh is the duty officer who recorded the FIR No. 22/08 of this case and proved the computerized copy of the same as Ex. PW3/A.
11. PW11 W/HC Reena deposed that on 28.03.2008 she took the prosecutrix to GTB Hospital for her medical examination and after her medical examination, the sealed SC No. 235/13 State vs. Firoz etc Page 6 of 18 parcels alongwith sample seal were received from the hospital which were seized by the IO vide memo Ex.PW7/B.
12. PW4 Dr. Anshul Grover, specialist Department of (OBS & Gyne), BJRM Hospital, Jahangirpuri, Delhi has deposed that she medically examined the prosecutrix and prepared her MLC and proved the same as Ex. PW4/A.
13. PW7 Inspector Krishan Lal and PW6 ASI Khagnesh Kumar have deposed that on 25.03.2008 they were present at Bhajanpura Chowk. The complainant Hari Prasad met them and disclosed that his daughter is available at Ludhiana, Punjab and vehicle bearing No. DL-5CC-1031 of grey colour Wagon R car was also seen at Ludhiana in which his daughter was taken. On receiving the said information, they accompanied with the complainant in his vehicle to Ludhiana. They reached at Ludhiana on 26.03.2008 and tried to trace the prosecutrix on 26.03.2008 and 27.03.2008. In the evening of 27.03.2008 when they were present at Smarala Road in front of Arora Nursing Home, the abovesaid vehicle was seen by them. The said vehicle was made to stop and the prosecutrix was found sitting on the front seat of the car near the seat of driver and on the driver seat co-accused Vishant @ Jeetu (facing trial before the Juvenile Justice SC No. 235/13 State vs. Firoz etc Page 7 of 18 Board) was found sitting. He deposed that on the back seat of the car, accused Firoz was sitting who was ill at that time. The prosecutrix was recovered vide memo Ex. PW1/E. Accused Firoz showed his medical slip to the IO to show that he has been referred to Delhi by the doctor for his treatment. The slip was seized by the IO vide memo Ex.PW1/B. Both the accused and the prosecutrix were brought to Delhi. The car was also seized vide memo Ex.PW1/A and was brought to Delhi. The accused persons were interrogated. Accused Firoz was arrested vide arrest memo Ex.PW1/D and his personal search was conducted vide memo Ex.PW1/C and his disclosure statement Ex.PW5/C was recorded.
14. PW5 HC Yatvir Singh deposed that on 28.03.2008 he was posted at police station Bhajanpura and on that day he joined the investigation with Inspector Krishan Lal. Accused Firoz was arrested in the present case vide arrest memo Ex.PW1/D and his personal search was conducted vide memo Ex. PW1/C. Accused made disclosure statement Ex. PW5/C. Accused Vashant was arrested vide arrest memo Ex. PW5/A and his personal search Ex. PW5/B. Accused made disclosure statement Ex. PW5/D.
15. PW9 Ct. Bijender Singh deposed that on SC No. 235/13 State vs. Firoz etc Page 8 of 18 28.03.2008 he joined the investigation of this case with Inspector Krishan Kumar and took the accused Firoz @ Babbal to GTB Hospital for his medical examination. Accused Vishant @ Jeetu was taken to GTB Hospital for his medical examination by Ct. Ravinder. The sealed parcels received from the hospital were seized vide memo Ex.PW7/A.
16. PW13 Ct. Ravinder deposed that on 28.03.2008 he was posted at police station Bahajanpura and on the direction of the IO he took accused Vishant to GTB Hospital for his medical examination. After medical examination, he brought the accused to the police station and handed over the sample and sample seal to the IO.
17. PW8 Dr. P.K. Phukan, CMO, GTB Hospital deposed that he has seen the MLC No. A1238/08 dated 28.03.2008 of Firoz @ Babbal who was medically examined by Dr. Bibhash, Junior Resident. He deposed that Dr. Bibhash has left the service of the hospital and he identified the handwriting and signature of Dr. Bibhash as he had seen him writing and signing during the course of duties. This witness proved the MLC of accused Firoz as Ex. PW8/A. SC No. 235/13 State vs. Firoz etc Page 9 of 18
18. PW10 Smt. Usha Kiran Madan, Lecturer English, Sarvodya Kanya Vidyalaya No.1, C-Block, Yamuna Vihar, Delhi has brought the school record regarding the date of birth of the prosecutrix. This witness has also brought the admission and withdrawal register of the prosecutrix. As per record, the prosecutrix was got admitted in their school on 26.06.2006 in 11thE and her date of birth was mentioned as 16.09.1990. This witness proved the photocopy of admission register as Ex.PW10/A. She also brought the attendance register of the prosecutrix and proved the same as Ex.PW10/B. She deposed that the prosecutrix had attended their school till 09.01.2008 and thereafter she remained absent.
19. PW12 Sh. Lalit Kumar, learned ADJ has deposed that he recorded the statement of the prosecutrix u/s 164 Cr. P.C and proved the same as Ex. PW12/C.
20. PW14 SI Shishu Pal is the second IO who deposed that on 19.04.2008 present case was marked to him for further investigation. During investigation, he sent the exhibits of accused persons and the prosecutrix to FSL through Ct. Ajay. He further deposed that on 12.05.2008 he went to Govt. Sarvodaya Kanya Vidyalaya, C-1, Yamuna Vihar, Delhi and met Vice Principal who produced him one SC No. 235/13 State vs. Firoz etc Page 10 of 18 letter Ex. PW10/C regarding attendance of the prosecutrix. IO deposed that he collected the FSL report Ex. PW14/A alongwith forwarding letter Ex.PW14/B and after completion of investigation, he prepared the chargesheet and filed in the court.
21. I have heard arguments addressed by learned Addl. Public Prosecutor for the State and learned defence counsel and perused the record.
Offences u/s 363/364A IPC
22. The case of the prosecution is that the present accused alongwith co-accused Vishant @ Jeetu had kidnapped the prosecutrix. Accused Vishant @ Jeetu is not facing trial in this case as he was a Juvenile at the relevant time and thus he was sent for trial before Juvenile Justice Board. As per the statement of accused Firoz recorded u/s 313 Cr.P.C, accused Vishant @ Jeetu has been acquitted by the Juvenile Justice Board.
23. Section 363 IPC provides punishment for offence of 'kidnapping of minor' as defined under section 361 IPC. Section 361 IPC stipulates that whoever takes or entices any minor under sixteen years of age if a male, or under SC No. 235/13 State vs. Firoz etc Page 11 of 18 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 the such guardian, is said to kidnap such minor or person from lawful guardianship.
24. Thus, in order to establish that a person has committed the offence of kidnapping, the prosecution is required to show:
(a) victim was a minor;
(b) accused took or enticed that minor out of the lawful guardianship;
(c) such taking or enticing was without the consent of the guardian.
25. As per the case of the prosecution, the prosecutrix was born on 16.09.1990 and the date of alleged incident is 09.01.2008. Thus the prosecutrix was about 17 years 3 months at the relevant time. The father of the prosecutrix i.e. PW1 deposed during his examination in chief that date of birth of his daughter (prosecutrix) is 16.09.1990. This finds support from the statement of PW10 i.e. the witness from the school of the prosecutrix. This witness deposed that as per the school records i.e. admission application form, copy of marksheet and the school leaving certificate Ex.PW10/A (collectively) of the SC No. 235/13 State vs. Firoz etc Page 12 of 18 prosecutrix, her date of the birth is 16.09.1990. Thus at the relevant time the prosecutrix was below 18 years of age.
26. Insofar as the aspect of enticement is concerned, the only material witness who may have some personal knowledge in the matter is PW1 (father of the prosecutrix). However, during his evidence this witness has not been consistent. In his examination in chief, he deposed that on 09.01.2008, the prosecutrix went to her school but she did not come back from the school. He tried to trace his daughter but could not do so. He further deposed that his daughter was traced out after 2½ months of her missing but he did not remember where he accompanied the police officials to trace his daughter. He also deposed that his daughter did not disclose anything to him. Although he (PW1) identified the accused in the court but he stated that he did not know him prior to the present case. He deposed that police did not recover anything in his presence.
27. At this stage, learned Addl. PP for the State sought an opportunity to cross examine this witness as he was not supporting the case of prosecution. During cross examination, the witness admitted that the police had accompanied him to Ludhiana and Fagwada to trace out SC No. 235/13 State vs. Firoz etc Page 13 of 18 his daughter. He also admitted that on 26.03.2008 and 27.03.2008 they reached Arora Hospital (Nursing Home Chowk, Baba Than Singh Samrala Road) at Ludhiana where a Wagon R car bearing No. DL-5CC-1031 was seen and stopped in which his daughter was found sitting on the front seat. He also admitted that the car was being driven by co-accused Vishant Chauhan. He however, maintained that he does not remember if he stated before the police that accused Firoz was lying on the back seat of the car. On further cross examination, this witness admitted that his daughter was kidnapped by the accused Firoz and Vishant who were residents of Kabir Nagar.
28. During cross examination on behalf of accused, this witness again changed his version and deposed that he does not know who had taken his daughter on the day of lodging of missing report of his daughter. He further deposed that he does not remember if they reached any hospital. He also deposed that he does not remember if he had seen the vehicle no. DL-5CC-1031 at Ludhiana. He deposed that police might have accompanied him to Ludhiana but he is not sure and he does not remember the name of the officials. He deposed that he had seen his daughter at Ludhiana after her missing from Delhi and his daughter was brought to Delhi.
SC No. 235/13 State vs. Firoz etc Page 14 of 1829. PW6 ASI Khagnesh Kumar and PW7 Inspector Krishan Lal are the witness of recovery of the prosecutrix at Ludhiana. These witnesses have deposed that in the evening of 27.03.2008 when they were present in front of Arora Nursing Home, Ludhiana, car no. DL-5CC-1031 was seen by them. They stopped the said car in which the prosecutrix was found sitting near the driver's seat and on the driver seat co-accused Vishant was found sitting. They have also deposed that the accused Firoz was sitting on the back seat as he was sick at that time.
30. The evidence on record at best would show that at the time of recovery of prosecutrix she was accompanied by the present accused. There is nothing on record to show that the accused Firoz enticed the prosecutrix or otherwise took her out of lawful guardianship of her father. On the basis of evidence on record, it is not possible to conclude that the present is a case of taking or enticement and not a case of the prosecutrix leaving her guardianship on her own. There is no evidence to show use of force by the accused. Thus the basic ingredient of section 361 IPC that the accused enticed or used force against the prosecutrix to take her out of the lawful guardianship is not proved. Under these SC No. 235/13 State vs. Firoz etc Page 15 of 18 circumstances the commission of offence punishable u/s 363 IPC is not proved beyond reasonable doubt and thus the accused is acquitted of the charged offence punishable u/s 363 IPC.
31. Since the accused has been acquitted of the charge of commission of offence punishable u/s 363 IPC, as a corollary, he is acquitted of the charge of commission of offence punishable u/s 364-A IPC. Section 364A IPC is an aggravated form of offence punishable u/s 363 IPC. Moreover, there is no evidence on record to show that there was any ransom demand for the prosecutrix from her family members by the accused or any other person.
Offence u/s 376 IPC
32. There is no evidence on record to connect the accused with the offence of rape punishable u/s 376 IPC. Prosecutrix has not appeared in the witness box. PW1 father of the prosecutrix has not made any allegation connecting the accused with the offence of rape. Though during investigation, the prosecutrix was got medically examined on 28.03.2008 vide MLC Ex.PW4/A and the hymen of the prosecutrix was found torn (old tear) but there is nothing on record to show that accused Firoz had SC No. 235/13 State vs. Firoz etc Page 16 of 18 sexual intercourse with the prosecutrix. Hymen can be damaged for the reasons other than sexual intercourse. FSL report dated 19.12.2008 (Ex.PW14/A) is also of no help to the case of the prosecution as no human semen was detected on the person or the clothes of the prosecutrix. Under these circumstances, accused is acquitted of the charged offence punishable u/s 376 IPC.
Offences u/s 344/328/506 IPC
33. There is nothing on record to show that the accused Firoz at any point of time administered any sedative substance to the prosecutrix. No such substance has been recovered. Also there is no evidence to show that the prosecutrix was confined by the accused persons at any point of time. Similarly, the prosecution has not been able to prove that the prosecutrix was ever threatened by the accused. The prosecutrix has not appeared in the witness box. PW1 father of the prosecutrix has not stated anything connecting the accused with any of these offences. Thus, accused is acquitted of the charged offences punishable u/s 344/328/506 IPC.
34. In view of the above discussion, it is held that the prosecution has failed to prove its case against the SC No. 235/13 State vs. Firoz etc Page 17 of 18 accused for the charged offences punishable u/s 363/364- A/376/344/328/506 IPC. Thus, the accused is acquitted of the said offences.
35. File be consigned to record room after necessary compliance.
Announced in the open court on 14.11.2014 (Sarita Birbal) Additional Sessions Judge, (SFTC), Karkardooma Courts, Delhi SC No. 235/13 State vs. Firoz etc Page 18 of 18