Delhi District Court
State vs . Sukhari Mehto on 18 May, 2023
IN THE COURT OF SH. AJAY NARWAL, MM-02, NORTH DISTRICT, ROHINI
COURTS, DELHI
State Vs. Sukhari Mehto
FIR No. 153/2016
PS: SP Badli
U/S : 363 IPC
JUDGMENT
ID number of the case : 5295713/2016
Date of commission of offence : 13.02.2016
Date of institution of the case : 28.04.2016
Name of the complainant : Sh. Santosh Kumar s/o Sh. Suresh Shah, r/o
H. No. N-44/A-315, Gali No. 09, Sanjay
Colony, Delhi.
Name of accused and address : Sukhari Mehto s/o Shree Mehto, r/o village
Belltola Joriyahi, PS Bairgania, District
Simamani, Bihar.
Offence complained of or proved : U/s 363 IPC
Plea of the accused : Pleaded not guilty
Final order : Acquittal
Date of judgment : 18.05.2023.
BRIEF STATEMENT OF FACTS FOR THE DECISION:-
1. The case of the prosecution in brief is that on 13.02.2016, at about 3.30 p.m, at Macchi Market, Sanjay Colony, Samaipur, Delh within the jurisdiction of PS S.P Badli, accused enticed/allured one minor girl namely Shalini aged 4 years to go out from the custody of lawful guardian i.e. Sh. Sh. Santosh without his consent and permission. Sh. Santosh Kumar father of the victim made a complaint about the incident and on the basis FIR No. 153/2016 State Vs. Sukhari Mahto Page No. 1 of 9 of his complaint an FIR was registered. Investigation was carried out and charge sheet was filed in this case u/s 363 IPC against the accused. Accused was summoned and thereafter copy of charge sheet was supplied to the accused in compliance of sec. 207 Cr.PC.
2. Charge u/s 363 IPC (Indian Penal Code) was framed against accused on 16.03.2017, to which he pleaded not guilty and claimed trial.
3. Matter was listed for prosecution evidence. Prosecution examined following witnesses :-
4. Sh. Santosh Kumar was examined as PW 1. He deposed that on 13.02.2016 at about 3.30 p.m, when her daughter namely Shalini, aged about four years was playing on the road near her house, accused had taken away her on his lap and in the meantime, he was returning from Libas pur and saw that her daughter was on the lap of the accused. He enquired from accused on which he said that victim is his niece. Complainant also deposed that he does not know accused and he is not his relative and public persons gathered on the spot. He called at 100 number, police arrived there and he narrated the whole incident to the police official, who recorded his statement and police arrested and personally searched the accused in his presence. His statement u/s 164 of Cr.P.C was also recorded by Ld. MM. He was also cross examined by the Ld. defence Counsel.
5. HC Surjeet Singh was examined as PW2. He deposed that on 13.02.2016, he along FIR No. 153/2016 State Vs. Sukhari Mahto Page No. 2 of 9 with PW4/SI Suresh Chand on receiving DD No. 37A went to the spot and met the with PW1/complainant, who produced accused and stated that accused had kidnapped her daughter. IO recorded statement of complainant and and prepared the tehrir and handed over the same to him for registration of FIR, he went to PS, got the FIR registered and return the spot along with copy of FIR and handed over the same to IO. PW4/IO arrested and personally searched accused. He also deposed that after medical examination, accused was sent to lock. He was cross examined by Ld. Defence counsel.
6. ASI Bhim Singh was examined as PW3. He deposed that on 13.02.2016, he received rukka through Ct. Surjeet and made endorsement thereon and thereafter registrered the FIR of the present case. He was not cross examined by Ld. Defence counsel.
7. Retd/SI Suresh Chand was examined as PW4. He deposed that on 13.02.2016, he along with PW2/Ct. Surjeet Singh on receiving DD No. 37A went to the spot and met the with PW1/complainant, who produced accused and stated that accused had kidnapped her daughter. He recorded statement of complainant and prepared the tehrir and handed over the same to Ct. Surejeet Singh for registration of FIR. In the meantime, IO prepared the site plan. Thereafter, PW4/IO arrested and personally searched accused. He also deposed that after medical examination, accused was sent to lock. He also deposed that on 15.02.2016, statement of complainant was also recored u./s 164 of Cr.P.C before Ld. MM. He was cross examined by Ld. Defence counsel.
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8. Statement of accused u/s 313 Cr.P.C was recorded on 17.04.2023, wherein he stated that he has been falsely implicated in the present case. Accused stated that he does not wish to lead any defence evidence in this case.
9. I have thoughtfully considered the arguments advanced, perused the material available on record, scrutinized the evidence led by the prosecution and gone through the relevant provisions of law.
10. For ready reference, the provisions of Section 363 of IPC and 361 IPC are reproduced as below :
363. Punishment for kidnapping.--Whoever kidnaps any person from 1[India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
361. Kidnapping from lawful guardianship.--Whoever takes or entices any minor under 1[sixteen] years of age if a male, or under 2[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. Explanation.--The words "lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other person.
11. The offence of kidnapping has been defined in section 361 IPC. Section 363 IPC lays down punishment for offence of kidnapping of a minor. For the offence of FIR No. 153/2016 State Vs. Sukhari Mahto Page No. 4 of 9 kidnapping, it is not essential that there should be use of force. It is sufficient if the accused had enticed or induced the prosecutrix to leave lawful guardianship of his or her parents and accompany the accused. Kidnapping can be either by force or enticement. In Thakorlal D. Vadgama V. State of Gujrat (AIR 1973 SC 2313), the Hon'ble Supreme Court observed as follows:
"The word "entice" seems to involve the idea of inducement or allurement by giving rise to hope or desire in the other. This can take many forms, difficult to visualise and describe exhaustively; some of them may be quite subtle depending for their success on the mental state of the person at the time when the inducement is intended to operate. This may work immediately or it may create continuous and gradual but imperceptible impression culminating after some time, in achieving its ultimate purposes of successful inducement. The two words "takes" and "entices", as used in Section 361, I.P.C. are, in our opinion, intended to be read together so that each takes to some extent its colour and contents from the other."
12. The statutory language suggests that if the minor leaves her parental home com- pletely uninfluenced by any promise, offer or inducement emanating from the guilty partly, then the latter cannot be considered to have committed the offence as defined in Section 361 IPC. But if the guilty party has laid a foundation by inducement, allurement or threat, etc. and if this can be considered to have influenced the minor or weighed with her in leaving her guardian's custody or keeping and going to the guilty party, then prima facie it would be difficult for him to plead innocence on the ground that the minor had voluntarily come to him. If he had at an earlier stage solicited or induced her in any man-
FIR No. 153/2016 State Vs. Sukhari Mahto Page No. 5 of 9 ner to leave her father's protection, by conveying or indicating an encouraging suggestion that he would give her shelter, then the mere circumstance that his act was not the imme- diate cause of her leaving her parental home or guardian's custody would constitute no valid defence and would not absolve him."
13. At the outset, it is apposite to mention that prosecution has examined PW-1 who was the father of the victim as the sole eye witness. IO of the case expired during the course of trial and he was dropped from list of witness. PW1 deposed that on 13.02.2016 at about 3.30 p.m, when her daughter namely Shalini, aged about four years was playing on the road near her house, accused took his daughter in his lap and left the spot. He fur- ther deposed that he was returning from Libas pur and saw that her daughter was on the lap of the accused. It is pertinent to mention that statement of PW-1 was also recorded un- der u/s 164 of Cr.P.C before the concerned Ld. MM wherein he has stated that his daugh- ter was taken away by one person whose name was Sukhari Mahato and he was beaten by the public and handed over to the police. It is mentioned inter-alia, in the original com- plaint which was exhibited as Ex. PW1/A PW-1 that the accused has picked up the victim while she was playing. It was also mentioned in the said complaint that victim was sitting in the lap of the accused.
14. As discussed in aforesaid para that for the offence under Section 363 of IPC, the ac- cused must takes or entices the minor out of the keeping of the lawful guardian of such minor. It is pertinent to mention that perusal of testimony of PW-1 reveals that the witness is making contradictory statements. In his deposition, PW stated that accused took his FIR No. 153/2016 State Vs. Sukhari Mahto Page No. 6 of 9 daughter on his lap and left the spot and he also deposed that when he was returning from the libaspur than he saw his daughter sitting on the lap of accused. If the victim is sitting on the lap of the accused then it cannot be said that accused kidnapped the daughter of the PW-1.
15. Moreover, PW-1 has also made material improvements in his statement recorded before the Magistrate under Section 164 of Cr.PC. In his statement, PW-1 has merely stated that his daughter was taken away by one person whose name was Sukhari Mahato and he was beaten by the public and handed over to the police whereas in his examination in chief he has stated that accused took his daughter in his lap and left the spot.
16. It is also pertinent to mention that PW-1 in his statement which was recorded by po- lice has stated that accused took away her daughter when she was playing and around 3.30 pm when he was going to his home from Libaspur than he saw his daughter sitting on the lap of the accused and accused told him that he was the uncle of his daughter. The state- ment of PW-1 that he saw the accused taking away her daughter when she was playing doesn't seems to be reliable as he was not present there and moreover PW-1 has himself admitted that he saw his daughter sitting on the lap of the accused when he was returning from home. When the accused has taken away the daughter of the PW-1 than it does not make any sense that he will remain there till 3.30. In normal circumstances, whenever any accused kidnap anyone than he tries to flee from the spot as soon as possible and would not be sitting there.
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17. It is settled principle of law that conviction can be based upon the sole testimony of a witness if it inspires confidence. There is no rule of law that independent corroboration is required in all cases/circumstances. However, testimony of PW-1 doesn't inspire confi- dence of this court as there are material improvements and contradictions in his testimony.
18. No doubt wrong acquittals are undesirable and shake the confidence of the people in judicial system, much worse, however, is the wrongful conviction of the innocent man. The consequences of conviction of innocent men are far more serious and its reverbera- tion would be felt by an innocent all his life in a civilized society, therefore, it is the duty of the court to avoid any wrongful conviction and to grant benefit of doubt where ever the need arises. If two views are possible, one favouring the accused and the other against him, the benefit of doubt must be given to the accused and in the instant case, prosecution has failed to prove its case against accused persons beyond reasonable doubt.
19. At this stage, court further deems it fit to state, that it is a settled principle of crimi- nal jurisprudence, that culpability cannot be established on surmises and conjectures but it should rest on cogent, reliable and clinching evidence, dispelling every doubt and bul- warking the fact that in all possibility, the offence must have been committed by the ac- cused. It is a settled proposition of law that in a criminal trial, the burden of proving ev - erything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. It was observed in Partap v. State of U.P., (SC) 1976 A.I.R. (SC) 966 that FIR No. 153/2016 State Vs. Sukhari Mahto Page No. 8 of 9 while prosecution required to prove its case beyond a reasonable doubt, accused can dis- charge his onus by establishing a mere preponderance of probability. In Vijayee Singh v. State of U.P., (SC) 1990(3) S.C.C. 190 it was again held that in criminal cases burden is always is on prosecution and never shifts.
20. Therefore, in view of the above said discussion it is pellucid, that the case of the prosecution suffers from several glaring loopholes. Hence, this court is of the considered opinion, that the prosecution has failed to prove the guilt of the accused person beyond reasonable doubt. Accordingly, accused person Sukhari Mahto stands acquitted in the present case for the offence punishable u/s 363 of IPC. File be consigned to Record room after necessary compliance.
Dictated directly into the computer (AJAY NARWAL)
and announced in the open Court, MM-02/North/Rohini
On 18th May, 2023. Delhi/18.05.2023.
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