Delhi District Court
State vs . Sameer Alam on 22 February, 2014
IN THE COURT OF MS. NEHA: METROPOLITAN
MAGISTRATE03 : (SOUTH EAST) DELHI
STATE Vs. Sameer Alam
FIR No: 348/12
P. S. Hazrat Nizamuddin
Date of Institution of Case : 30.11.2012
Date on which case reserved : 06.02.2014
for Judgment
Date of Judgment : 22.02.2014
JUDGEMENT :
a) Date of offence : 10.10.2012 b) Offence complained of : 363 IPC c) Name of complainant : Sh. Dhani Ram d) Name of accused, his : Sameer Alam @ Sonu parentage & residence S/o AttaUrRehman R/o Mehandi Hassan Chowk, Mirzapur Jagni, Rampura Darbhanga, Bihar. e) Plea of accused : Not guilty g) Final order : Acquitted Counsels for the Parties: Sh. Anil Paswan Ld. APP for the State.
Ms. Anurag Rita, Ld. Counsel from DLSA for the accused. FIR no. 348/12 State Vs. Sameer Alam PS Hazrat Nizamuddin 1 of 16 BRIEF FACTS AND REASONS FOR DECISION:
The case of the prosecution in brief is that on 10.10.2012 at about 1:30 pm, at Railway Fattak Hazrat Nizamuddin, accused Sameer Alam had taken away one girl/minor named Babita without the consent of her parents or lawful guardians from their lawful custody. Sh. Dhani Ram, father of minor Babita filed complaint regarding the missing of girl. Accordingly, FIR No. 348/12 U/s 363, the Indian Penal Code 1860 (hereinafter called 'IPC') was registered at PS Hazrat Nizamuddin, New Delhi. Thereafter minor Babita was recovered from the house of accused at Darbhanga, Bihar. Accused was arrested in the present case.
2. After the completion of the investigation, charge sheet for offence u/s 363/376 IPC was filed against accused Sameer Alam. Cognizance of the offence was taken and accused was summoned to face trial. Copy was supplied to the accused. The offence under section 376 IPC was exclusively triable by the Court of Sessions, therefore the case was committed to the Court of Sessions. Vide order dated 01.04.2013, Ld. ASJ01 has held that offence under section 376 IPC is not made out against the accused and accused was discharged under section 376 IPC. The case was remanded FIR no. 348/12 State Vs. Sameer Alam PS Hazrat Nizamuddin 2 of 16 back to this Court. After hearing the parties, charge for offence punishable u/s 363 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
3. Prosecution, in order to prove its case has examined ten prosecution witnesses. Sh. Dhani Ram, complainant/ father of minor, has been examined as PW1. Smt. Usha, mother of minor has been examined as PW2. Babita, minor/victim has been examined as PW3. Dr. Hans Raj Singh, who proved the medical examination of accused, has been examined as PW4. Ct. Sanjeev Kumar, who joined the investigation with IO, has been examined as PW5. W/SI Vinita, who along with IO Kamini Gupta went to PS Lehria, Darbhanga Bihar, has been examined as PW6. HC Umesh Kumar, who joined proceedings with IO at Darbhanga Bihar, has been examined as PW7. HC Narayan Singh, duty officer who registered present FIR, has been examined as PW8. SI Chhail Bihari, first IO, has been examined as PW9. SI Kamini Gupta, second IO has been examined as PW10.
4. PW Dr. Kusum Gupta was dropped from the list of prosecution witnesses at the request of Ld. APP vide order dated 28.06.2013. PW Soni was not traceable and she was dropped from FIR no. 348/12 State Vs. Sameer Alam PS Hazrat Nizamuddin 3 of 16 the list of prosecution witnesses vide order dated 26.07.2013. PW WCt. Veena was dropped from the list of prosecution witnesses at the request of Ld. APP vide order dated 03.10.2013. PE was closed at the request of Ld. APP vide order dated 29.11.2013.
5. Accused was examined u/s 313 CrPC, wherein accused denied all incriminating evidence put to him. However, he did not lead any DE. Therefore, the matter was fixed for final arguments.
6. Final arguments were addressed on behalf of Ld. APP for the State and Ld. Defence counsel, on behalf of all the accused.
7. Ld. APP for the State has argued that the prosecution has been able to prove its case beyond reasonable doubts. Complainant and other prosecution witnesses have proved that accused has taken the minor named Babita from the lawful custody of her parents without consent or permission of parents or lawful guardians. It is also argued on behalf of State that the testimonies of prosecution witnesses leave no doubt that the accused had committed the offence for which he has been charged with.
8. Ld. Counsel for the accused, on the other hand, has argued that there are material contradictions in the testimonies of the minor. It is also argued that Soni has not been examined as a FIR no. 348/12 State Vs. Sameer Alam PS Hazrat Nizamuddin 4 of 16 witness, though she was last person seen with the minor. It is also argued that nobody heard shouting of minor which prima facie shows that she has gone with the accused out of her own free will. It is argued that the story of the prosecution is false and concocted, therefore accused may be acquitted.
9. I have considered the submissions of Ld. APP for the state and Ld. Counsel for the accused and perused the entire material on record carefully.
10. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the story of the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused. The accused has just to create a reasonable doubt, on the balance of probability, about the story of the prosecution.
11. In the present case, the allegation against the accused is that he has taken minor Babita from the lawful custody of her parent without consent/permission of her parents. Accused has FIR no. 348/12 State Vs. Sameer Alam PS Hazrat Nizamuddin 5 of 16 been charged with offence of kidnapping punishable under section 363 IPC.
12. Section 361 IPC defines 'Kidnapping'. Section 361, I.P.C. Reads :
"361 : 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."
13. The essential ingredients to constitute offence of kidnapping are as under:
(a) taking or enticing away a minor or a person of unsound mind
(b) such minor must be 16 years of age, if a male, or under 18 years of age, if a female
(c) the taking or enticing must be out of the keeping of the lawful guardian of such minor or person of unsound mind
(d) such taking or enticing must be without the consent of such guardian.
14. The complainant/father of minor and mother of minor have been examined as PW1 and PW2 respectively. PW1 Sh.
FIR no. 348/12 State Vs. Sameer Alam PS Hazrat Nizamuddin 6 of 16
Dhani Ram has deposed that about 67 months back, he was present in his house and he was having minor daughter Babita aged about 17 years. On that day, one girl named Soni, studying with her daughter, came to house and called her daughter and took her on the pretext of her birthday. Thereafter, his daughter Babita had not returned to house. After returning from his office, he found his daughter was not present in the house. He inquired from Soni, Soni stated that she had left Babita at the flyover at about 1:30 pm. He searched for his daughter and thereafter gave complaint to the police. Complaint is Ex PW1/A.
15. PW1 has further deposed that later on Soni stated that one person used to follow them. Subsequently, he came to know that his daughter Babita was in Darbhanga Bihar. After receiving the said information, he went to PS and informed to the police. Thereafter, he alongwith the police went to that place and his daughter was found. They took her to Delhi and he took the custody of minor Babita.
16. Smt. Usha, mother has been examined as PW2. PW2 has deposed that she has four children. Her younger daughter Babita was aged about 16 ½ years and was studying in 11 th standard. On FIR no. 348/12 State Vs. Sameer Alam PS Hazrat Nizamuddin 7 of 16 10.10.2012, her daughter Babita along with her friend Soni went from the house and thereafter she did not return to house. They inquired from Soni about whereabouts of Babita and she stated that she had dropped Babita at the Railway Fatak. Thereafter, Babita was not found.
17. Minor/Victim Babita has been examined as PW3. PW3 has deposed that on 10.10.2012, she was at her home. At about 12:00 noon her friend Soni came to her house as it was her birthday and Soni asked her to take out and give a party. They went outside house and went to Bhogal where they had Cholle Bhature. Her friends returned to their houses and she was coming alone to her house.
18. She has further deposed that the accused followed her in a Tempo. He caught hold of her mouth and took her into the said tempo. He took her to Bihar. She could not know the exact place where the accused had taken her. Accused threatened her that he would kill her if she will tell about the incident to anybody. After some days, police and her parents also came there and rescued her and took her to CAW cell. Police had produced her before a Magistrate where she had given a statement. She has stated that FIR no. 348/12 State Vs. Sameer Alam PS Hazrat Nizamuddin 8 of 16 during statement under section 164 Cr.P.C she had stated that she herself went alongwith the accused as per her free will, since the accused had threatened her. Due to fear of the accused, she had given wrong statement before Magistrate. At the time of giving statement to the Magistrate, she was under fear. Presently, she was deposing the true facts. The statement before Magistrate is Ex PW3/A.
19. HC Umesh Kumar who went to PS Lehria Sarai with the complainant, has been examined as PW7. He has deposed that on 17.10.2012, he was posted as HC in PS HND. On that day, he joined investigation of this case and as per the instructions of SI Chhail Bihari he alongwith complainant Dhani Ram went to PS Lehria Sarai, Darbhanga Bihar and reached there on 19.10.2012. They found victim Babita alongwith accused Sameer Alam at PS. He informed with his mobile to SHO about the same. On 24.12.2012 W/SI Kamini Gupta and W/SI Vinita came to PS Lehria Sarai. IO interrogated both the victim and the accused and conducted further proceedings.
20. First IO SI Chhail Bihari has been examined as PW9. PW9 has deposed that on 11.10.2012, he was posted at PS HND.
FIR no. 348/12 State Vs. Sameer Alam PS Hazrat Nizamuddin 9 of 16
On that day, while he was at PS, at about 6:00 pm complainant Dhani Ram came to PS and gave statement that his daughter named Babita was taken by some person. He made endorsement on the complaint which is Ex PW9/A and got registered the FIR. He alongwith the complainant went to the spot i.e Railway Fatak near HND Railway Station. He searched for Babita along with the complainant in the surrounding places. Thereafter, they went to the house of Soni i.e the friend of Babita. He recorded her statement and flashed the information. Thereafter, he also searched the other spot i.e Railway station and Bus stand etc. but no clue was found. The investigation of the case was handed over to SI Kamini Gupta. He handed over the case file to MHC (R).
21. Second IO SI Kamini Gupta has been examined as PW10. She has deposed that on 22.10.2012 she was posted at PS HND. On that day, the case was marked to her for investigation. She alongwith woman SI Vinita reached to PS Lehria, Darbhanga, Bihar on 24.10.2012 at about 2:00 am where they met HC Umesh Kumar from PS alongwith complainant Dhani Ram. HC Umesh informed that victim Babita alongwith accused Sameer were at PS Lehria. Complainant identified her daughter Babita and also the FIR no. 348/12 State Vs. Sameer Alam PS Hazrat Nizamuddin 10 of 16 accused. She obtained transit remand of accused from the local court and reached Delhi on 25.10.2012. She got conducted medical examination of the accused as well as victim Babita. She arrested accused vide memo Ex PW5/B. She moved application for recording the statement of the victim u/s 164 CrPC. After completion of investigation, she filed the chargesheet.
22. Perusal of the testimony of minor Babita shows that there are various contradictions in the statement of minor Babita made before the Court. During cross examination PW Babita has deposed that "I was walking on the road in Bhogal and the accused followed me in a tempo and caught hold of my mouth and took me. I saw the accused for the first time and accused was at my back. It was about 12:30 pm/1:00 pm and there was no traffic on the road. It is a lonely road and there were houses in that lane... When the accused was pushing me out of the gali, I made noise but nobody heard." She has further stated, "There was one more person alongwith the accused and both of them had dragged me inside the tempo. I was sitting on the back side of the tempo alongwith the accused, The other person was sitting on the front seat and the other third person was driving the tempo. The person FIR no. 348/12 State Vs. Sameer Alam PS Hazrat Nizamuddin 11 of 16 who was sitting on the front seat disappeared as he was dropped on the way."
23. The witness during his cross examination has stated that she will not be able to identify the other person. The witness has denied the suggestion that she knew the accused prior to the date of incident.
24. The statement of witness has also been recorded u/s 164 CrPC. During statement u/s 164 CrPC, witness has stated that she knew accused Sameer since January, 2012 as he was residing in the neighbourhood. She started talking to him and thereafter they both fell in love. On 10.10.2012, she met Sameer at the Lotus Temple and told him that she wants to go alongwith him and if he will refuse she will commit suicide after consuming poison.
25. The witness/minor during her statement u/s 164 CrPC has further stated that accused took him to Mumbai, where she stayed at relatives place for 34 days and during this period they had physical relations. From Mumbai they had gone to Bihar, where they stayed for 23 days. Thereafter they had gone to the house of the accused, where the parents of accused did not accept them and they stayed at station for 2 nights. When they again visited the FIR no. 348/12 State Vs. Sameer Alam PS Hazrat Nizamuddin 12 of 16 house of Sameer, the parents of Sameer called the police and they were apprehended.
26. Perusal of the statement recorded under section 164 CrPC would show that the statement is completely contradictory to the statement given before the court. The accused has not examined any witness in defence and has stated that he is innocent.
27. It is settled proposition of law that all that is required to bring an act within the purview of section 363 IPC, is to 'take or entice' a minor or a person of unsound mind from the keeping of the lawful guardian. 'Taking' implies neither force nor misappropriation. This word means 'to go, or escort'. The consent of the minor child is of no relevance, because a minor has no legal capacity to contract and the consent given by a minor or a person of unsound mind is no consent. But there must be some active part played by the accused for 'taking' the minor. Simply permitting or allowing a minor to accompany one will not amount to an offence.
28. In the present case, the minor during her statement under section 164 Cr.P.C has stated that she met the accused at Lotus Temple and asked her to take her with him. He refused, on which she told him that she will consume poison if he will not take her FIR no. 348/12 State Vs. Sameer Alam PS Hazrat Nizamuddin 13 of 16 with him. Thereafter he agreed to take her with him and they went to Mumbai. In the end the witness has stated that she does not want to go with her parents as they would beat her and she wants to go with accused. The statement under section 164 Cr.P.C of girl was recorded on 26.10.2012 after one week when she was recovered by HC Umesh and complainant. Police has recorded statement of minor on 25.10.2012 and in her statement to the police, she has stated that she was forcible taken by the accused and raped by him.
29. During crossexamination, PW Babita has stated that she was under fear and therefore she stated in her statement under section 164 Cr.P.C that she went on her own will. The story of threat by PW Babita at the time of recording of statement under section 164 Cr.P.C is not credible. There is nothing on record to suggest that she was under fear at the time of giving her statement under section 164 Cr.P.C. Ld. Magistrate has recorded statement after recording her satisfaction that the victim was giving her statement without any fear or influence. I am of the view that the statement of the girl given at the trial can not be believed. The previous statement recorded under section 164 Cr.P.C is preferable to her statement at the trial.
FIR no. 348/12 State Vs. Sameer Alam PS Hazrat Nizamuddin 14 of 16
30. The question to be decided in the present case is whether there was taking of minor by the accused within meaning of section 361 IPC. The word 'take' means that there must be some active part played by the accused in taking the child out of the custody of the guardian. There must be some proof of the accused having done something which led to the girl come out of the keeping of her guardian. There is distinction between 'taking' and 'allowing a minor to accompany.'
31. In the present case, the girl has stated that she was in love with the accused. She met the accused at Lotus Temple and insisted him to take her along with him, on which he refused. She stated that she would commit suicide if not taken by the accused. On much insistence, the accused took her with him. There is no role played by the accused in calling minor at Lotus Temple or bringing her out of the custody of lawful guardian. The fact is that they were in love. There is also no material placed to show that accused had promised to marry her or made any inducement which could have led the minor leave the custody of her guardian. The minor had left the custody on her own and thereafter joined the accused and insisted him to take her with him.
FIR no. 348/12 State Vs. Sameer Alam PS Hazrat Nizamuddin 15 of 16
32. In view of the discussion herein above, I am of the view that prosecution has failed to prove beyond reasonable doubt that there has been any active role played by the accused or any act done by him or any inducement given by him to bring the minor out of the custody of her guardian. The act of the accused is not covered within meaning of 'taking' or 'enticing' under section 361 IPC. Therefore, benefit of doubt is given to the accused and he is acquitted of the charges for offence punishable under section 363 IPC.
Pronounced in the open Court (Neha)
today on 22nd February, 2014 MM03 (South East)
Saket, New Delhi
FIR no. 348/12 State Vs. Sameer Alam
PS Hazrat Nizamuddin 16 of 16