Delhi District Court
State vs . Dil Bahadur on 17 January, 2011
IN THE COURT OF SH. HEM RAJ, METROPOLITAN MAGISTRATE, WEST
TIS HAZARI COURTS, DELHI
State Vs. Dil Bahadur
FIR No : 52/2009
U/S : 363/ 511 IPC
P.S : Vikas Puri
FIR No. : 52/2009
Unique Case ID No. : 02401R0645832009
a) Name of Complainant : Hanuman
b) Name of Accused : Dil Bahadur @ Til Bhadur
S/o Man Bahadur, R/oVaga Bond,
Vikas Puri area, Delhi
Permanent R/o Nepal.
Date of institution of Challan : 06.03.2009
Date of Pronouncement : 17.01.2011
Date of Commission of Offence : 24.02.2009
Offence Complained of : 363/511 IPC
Offence Charged with : 363/511 IPC
Plea of the Accused : Pleaded not guilty
Final Order : Acquitted.
J U D G M E N T
1 The prosecution filed a charge sheet against the accused on the allegations that on 24.02.2009 at about 2.00 PM at Main Road, Near Indra FIR No.52/2009 STATE V/s DIL BAHADUR PAGE No.1/11 Camp No. 5, DAV School, Vikas Puri, Delhi within the jurisdiction of PS Vikas Puri he attempted to kidnap daughter of the complainant Hanuman aged about 3 years namely Priyanka and thereby committed an offence punishable U/S363/511 IPC.
2 In compliance of Section 207 Cr.P.C, the copy of the charge sheet along with other documents were supplied to the accused. Later on, vide Order dated 23.03.2009, charge for offences under Section 363/511 IPC was framed by my Ld. Predecessor to which accused pleaded not guilty and claimed trial.
3 In order to prove its case against the accused persons, the prosecution examined a total number of following six witnesses: PW1 Hanuman is the complainant in this case.
PW2 Sh. Ramesh is the only eye witness in this case. PW3 W/HC Raj Bala was the DO who registered the FIR. PW4 Sh. Ranjeet was the neighbour of complainant and the eye witness.
PW5 ASI Rajender was the IO of the case.
FIR No.52/2009 STATE V/s DIL BAHADUR PAGE No.2/11 PW6 HC Ompal was involved in the investigation of the case alongwith the IO.
4 In his statement under Section 313 Cr.P.C., the accused denied that he was involved in any criminal offence and he claimed to be innocent and submitted that he was falsely implicated in this case. He chose not to lead any defence evidence.
5 The material witnesses in this case for the prosecution were PW1 Hanuman,PW2 Ramesh and PW4 Ranjeet. PW1 Hanuman deposed that on 24.2.2009 at about 2.00 p.m he heard a noise when he was present in a condolence meeting in the Jhuggis and thereafter, he came at the main road and he saw his jija Ramesh holding the accused and his daughter Priyanka was also present there. PW Ramesh told him that the accused was trying to allure Priyanka for a toffee and was trying to take her away. Then the police was called and the accused was handed over to the police. He got his statement EX PW1/A to the police. The police prepared the site plan EX PW1/B at his instance. The accused was arrested and his personal search was carried out vide seizures memos EX PW1/C and EX PW1/D. FIR No.52/2009 STATE V/s DIL BAHADUR PAGE No.3/11 6 In the cross examination the witness stated that the incident took place on 2.1.2009 and on the day of the incident the mother of his Jija had expired and her death was being condoled. From the meeting he came back at his house at about 1/1.30 p.m. He further stated that on 2nd January her Jija was present at his house. He further stated that he was knowing the accused before the incident. His jija's and his statement was recorded at the police station. He further stated that after 2.1.2009 he saw the accused in the court only. He denied the suggestion that his Jija Ramesh and the accused Dil Bahadur were taking alcohol together and an altercation took place and the accused was falsely implicated in this case.
7 PW2 Ramesh deposed that on 24.2.2009 at about 2.00 p.m he was cleaning his motor cycle near DAV School on a public tap and Priyanka was playing nearby and at that time the accused was alluring her to come with him on the pretext of giving a toffee to her. He immediately intervened and stopped him from taking the girl away. Meanwhile Hanuman alongwith other persons came there and gave beatings to him. Then the police was called at the spot.
FIR No.52/2009 STATE V/s DIL BAHADUR PAGE No.4/11 8 In the cross examination he stated that he saw the accused for the first time on 24.2.2009 when the incident took place. All relatives came to his house as his Naani had expired three days before the incident. He stated that they came back from there at about 11 a.m and he saw the accused having Priyanka in his lap who was looking frightened. He stated that he was at a distance of about 5/7 feet from the accused. He handed over the girl to his mother and also telephoned his Saala Hanuman who came at the spot. He further stated that the statements of Hanuman, Ranjeet and his statement were recorded at the spot. His signatures were obtained on a blank piece of paper. He denied the suggestion that he met the accused on 2.1.2009 the site plan was prepared at his instance. 9 PW 4 Ranjeet also deposed on the same lines as to what have been deposed by PW Hanuman and Ramesh. However, this witness was not cross examined by the accused.
10 It would be worthwhile to mention here that earlier PW Hanuman and Ramesh also were not cross examined but later on they were FIR No.52/2009 STATE V/s DIL BAHADUR PAGE No.5/11 recalled under section 311 Cr.P.C and their cross examination was conducted.
11 It has been submitted by Ld. APP the prosecution has been able to prove the guilt of accused beyond the reasonable doubt. It has been further stated that the testimonies of the prosecution witnesses are reliable and trustworthy.
12 On the other hand, the Ld. Defence Counsel has argued that no incriminating material has come on the record against the accused and that the prosecution has miserably failed to prove the case against the accused beyond reasonable doubt.
13 It is well settled principal of law that the prosecution has to prove the case against the accused beyond reasonable doubt and the prosecution has to stand upon on his own legs. The prosecution also cannot draw any strength from the case of the accused howsoever weak it may be. It is also well settled proposition of criminal law that the accused has a FIR No.52/2009 STATE V/s DIL BAHADUR PAGE No.6/11 profound right for not to be convicted for an offence which is not established by the evidential standard of proof beyond reasonable doubt. It is also a cardinal principle of criminal law that burden of proof in a criminal trial always rests on the prosecution and the same never shifts upon the accused. 14 After considering evidence on the record I am on the considered opinion that the prosecution has miserably failed to prove the case against the accused beyond the reasonable doubt for the following reasons: A. The perusal of the prosecution witnesses would reveal that there are inherent contradictions in their testimonies which give rise to the reasonable doubt and the prosecution case cannot be said to have been proved on the record beyond reasonable doubt. First of all the date of the incident has not been proved on the record beyond doubt. PW1Hanuman though in his examination in chief has deposed that the incident took place on 24.2.2009 but in his cross examination he stated the date of the incident as 2.1.2009. PW Hanuman further submitted that he had seen the accused FIR No.52/2009 STATE V/s DIL BAHADUR PAGE No.7/11 after 2.1.2009 in the court only. Moreover PW Ramesh denied the suggestion that he met the accused on 2.1.2009. As per the case of the prosecution, the date of the incident was 24.02.2009. Therefore, there is a reasonable doubt on the record about the date of the incident and the prosecution has not proved the same beyond the reasonable doubt. B. There are some contradictions in the testimonies of the prosecution witnesses also which render them to be unbelievable and untrustworthy. PW1 Hanuman who was the father of the girl tried to be kidnapped,deposed that his statement as well as the statements of PW Ramesh and PW Ranjeet were recorded at the police station but he was contradicted by PW Ramesh who deposed that the statements of all the witnesses were recorded at the spot itself. Therefore, the statement of prosecution witnesses were contradictory to each other and are not trustworthy. In my opinion, the prosecution case cannot be said to have been free from the reasonable doubt in view of the aforesaid testimonies. Hence I declined to accept their testimonies.
C It is also not clear on the record as to how PW Hanuman had reached at the spot. He deposed that after hearing the noise he came out of FIR No.52/2009 STATE V/s DIL BAHADUR PAGE No.8/11 his jhuggi when he saw that PW had caught hold of accused Dil Bahadur whereas PW Ramesh had deposed that after catching hold of the accused he made a telephonic call to Hanuman who then, came at the spot. In view of this testimonies in my opinion, the case of the prosecution suffers from reasonable doubts. It belies the claim of the prosecution that the incident and events taking place after the incident have not taken place in the manner as alleged by the prosecution, hence the same cannot be accepted. D Moreover, PW Hanuman deposed that on the day of the incident Ramesh and he left the condolence meeting together and he further deposed that he left the meeting at about 1/1.30 p.m however, PW Ramesh deposed to the contrary and deposed that he came back from the condolence meeting at about 11 a.m. E The most important aspect of the case is whether in the facts and circumstances of the case can it be said that indeed there was an attempt on the part of the accused. There is only one eye witness in this case i.e. PW Ramesh. In his examination in chief he deposed that the accused was alluring the girl Priyanka to go with him on the pretext of getting her a toffee and he immediately intervened and stopped him from taking the girl FIR No.52/2009 STATE V/s DIL BAHADUR PAGE No.9/11 away. In the cross examination he stated that he saw the girl in the lap of the accused who was looking frightened. He further stated that he was at the distance of about 5/7 feet when he saw the accused for the first time when the accused was alluring the girl on the pretext of getting her a toffee. In my opinion, the aforesaid facts did not constitute any attempt on the part of the accused to take the minor girl away from the lawful guardianship. The intention of the accused cannot be inferred that he wanted to take the girl away especially when PW Ramesh was present so near at the spot. Had the intention of the accused been to make any attempt to take the girl away he could have waited for some time to make ensure that there is no person available near the spot and that his chances of being caught are reduced to almost nil. Even it is admitted for the sake of arguments that indeed accused was taking the girl away on the pretext of getting her a toffee then also in my opinion, the accused may really have wanted to get the girl a toffee out of love and affection cannot be ruled out as it is not beyond the human nature that some unknown person showers his love and affection upon an unknown child. Even otherwise, I am not inclined to buy the theory of the prosecution as there are glaring inconsistencies in the testimonies of the prosecution witnesses which rendered them to be unbelievable and inspiring no confidence at all.
FIR No.52/2009 STATE V/s DIL BAHADUR PAGE No.10/11 15 Therefore, in view of the discussions made herein above and the facts and circumstances of the present case, in my considered opinion, the prosecution failed to prove the guilt of the accused beyond reasonable doubt. Hence, the accused Dil Bahadur is acquitted of the offences Under Sections 363/511 IPC. Let the accused be released forthwith if not wanted in any other case.. File be consigned to Record Room after necessary formalities.
ANNOUNCED IN THE OPEN COURT (HEM RAJ)
TODAY i.e. ON 17 JANUARY, 2011
th
MM09:WEST:THC
17.01.2011
FIR No.52/2009 STATE V/s DIL BAHADUR PAGE No.11/11