Delhi District Court
State vs Motiyar Rehman on 9 May, 2024
IN THE COURT OF MS. PADMA LADOL
METROPOLITAN MAGISTRATE-04,
NEW DELHI, PATIALA HOUSE COURTS, NEW DELHI
FIR No. 50/2011
PS Inderpuri
U/S : 23/26 JJ Act, 2000 & 323 IPC, 1860
State V/s. Motiyar Rehman & Ors.
Cr.C No. 43508/2016
CNR No. DLND020005182011
Date of Institution 03.10.2011
Complainant Kumari Aisa
D/o Sh. Abdul Hai
R/o Village Chatra Khali Basanti
Distt-24 Pargana West Bengal
Name, parentage and address of the 1. Motiyar Rehman
accused S/o Sh. Mohd. Jawed
R/o Village Chatra Khali Basanti
Distt-24 Pargana West Bengal
2. Mohd. Kalam Pailan
S/o Sh. Wasir Ali
R/o Village Radha Ballabhpur P.S
Basanti Distt-24 Pargana West
Bengal
3. Virender Tanwar
S/o Late Sh. Rai Singh
R/o H. No. WZ-276/B-4 Main
Inderpuri, Delhi
3. Monika Tanwar
W/o Sh. Virender Tanwar
FIR No. 50/2011
State Vs. Motiyar Reman & Ors. Page 1 of 17
R/o H. No. WZ-276/B-4 Main
Inderpuri, Delhi
Offence complained off Section 23/26 JJ Act, 2000 and 323
Indian Penal Code
Plea of Accused Not Guilty
Final Order 1. Accused Motiyar Rehman
already declared Absconder vide
order date 18.02.2019
2. Accused Mohd. Kalam pleaded
guilty and convicted vide order
dated 19.08.2023.
3. Accused Virender Tanwar
acquitted of offence punishable
u/s. 23 JJ Act, 2000.
4. Accused Monika Tanwar
acquitted of offence punishable
u/s. 23 JJ Act, 2000 and Sec. 323
IPC, 1860.
Date of Judgment 09.05.2024
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Argued by: Ms. Shruti Singhal, Ld. APP for the State.
Sh. Abdus Samad, Ld. Counsel for the accused persons.
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JUDGMENT
1. The SHO, Police Station Inderpuri has presented this charge-sheet against above named accused for initiation of trial U/s. 23/26 Juvenile Justice (Care And Protection Of Children) Act, 2000 (for short "JJ Act") and Sec. 323 Indian Penal Code, 1860 (for short "IPC") Digitally signed by PADMA PADMA LANDOL FACTUAL MATRIX LANDOL Date:
2024.05.09 17:34:16 +0530 FIR No. 50/2011 State Vs. Motiyar Reman & Ors. Page 2 of 17
2. In a nutshell, the case of the prosecution is that on 03.06.2011, the accused namely Monika Tanwar brought the complainant/victim to the PS Inderpuri with a complaint that the victim who was a domestic help at her house had stolen a ladies suit from her house. Monika Tanwar had revealed that the complainant/victim was employed by her as a domestic help through a placement agency namely Janta Placement Service, Chirag-Delhi 6 months ago. Thereafter, medical examination of the complainant/victim was conducted at Dr. RML Hospital and since she was only 16 years old, was sent to Nirmal Chhaya, shelter home for women. Thereafter, on 06.06.2011, the complainant/victim was produced before Child Welfare Committee (CWC) Board before whom she gave her statement that she is a resident of Chhatra khali village, Sundarpur masjid mod, PS Basanti Distt 24 Pargana West Bengal. She further stated that she is 16 years old and is working at H. No. WZ-276-B/4 Main Inderpuri Delhi as a domestic help for the last 7 months at a salary of Rs. 2500/- per month. That on 03.06.2011 at around 4.30 PM, when Monika Tanwar saw a suit in her hand, she got suspicious and said that she has stolen her suit. She denied having committed any theft and Monika Tanwar began searching for her suit inside the bed box. That the complainant/victim was holding the flap of the bed (palla) with both her hands and Monika Tanwar had hold the flap with one hand and she was searching for her suit with the other hand. That in anger, Monika Tanwar removed her hand from the flap of bed (palla) and since the complainant/victim was not strongly holding the flap, it hit her on her right hand and she suffered injury. Based on the complaint of the complainant, present FIR was registered and investigation ensued. During further investigation, MLC of victim was collected, witnesses were examined and their statement u/s. 161 CrPC were recorded. Thereafter, on completion of investigation, final report was presented for trial against accused Motiyar Rehman (uncle of victim), Mohd. Kalam Pailan (owner of placement agency), Virender Tanwar and Monika Tanwar.
Digitally signed by PADMA LANDOL FIR No. 50/2011 PADMA Date:
State Vs. Motiyar Reman & Ors. LANDOL 2024.05.09 Page 3 of 17
17:34:26
+0530
COGNIZANCE, COMPLIANCE OF SECTION 207 CRPC AND PLEA OF ACCUSED
3. After presentation of charge-sheet, accused were summoned by the Ld. Predecessor of this Court. Copy of the charge-sheet was supplied to all the accused u/s. 207 of Code of Criminal Procedure, 1973 (for short "CrPC"). Vide order dated 18.02.2019, accused Motiyar Rehman was declared absconder by Ld. Predecessor Court. Thereafter on 12.07.2019, notice u/s. 251 CrPC was framed against the remaining three accused for offence punishable under Sec. 23 of JJ Act, 2000 and additionally against accused Monika Tanwar u/s. 323 IPC to which the accused persons pleaded not guilty and opted to contest.
PROSECUTION EVIDENCE
4. In order to prove its case, prosecution examined four witnesses and relied upon following evidence -
Witness exhibiting Identification Description
PW-1 Charu Makkar Ex. PW-1/A Order of CWC dated
06.06.2011
Ex. PW-1/B Order of short term
placement of victim
PW-2 Dr. Vikas Yadav Ex. PW-2/A Report of bone age of
victim
PW-3 Dr. Uma K Ex. PW-3/A Report of medical
examination for
assessment of age of
victim
PW-4 Retd. SI Sudesh Ex. PW-4/A Statement of victim
Pal
Ex. PW-4/B Rukka
Ex. PW-4/C Arrest Memo of
accused Monika
Digitally signed
FIR No. 50/2011 by PADMA
State Vs. Motiyar Reman & Ors. PADMA LANDOL
Date: Page 4 of 17
LANDOL 2024.05.09
17:34:41
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Tanwar
Ex. PW-4/D Arrest Memo of
accused Virender
Tanwar
Ex. PW-4/E Arrest Memo of
accused Mohd. Kalam
Pailan
Ex. PW-4/F Arrest Memo of
accused Motiyar
Rehman
Ex. PW-4/G Personal Search Memo
of accused Motiyar
Rehman
Ex. PW-4/H Personal Search Memo
of accused Mohd.
Kalam Pailan
5. PW-1: Charu Makkar Member, JJB-IV, Delhi has deposed that in the year 2011, she was working as a Member, Child Welfare Committee. Attention of PW-1 was taken to the order No. F4(3)/CWC/ NCC/CHG/10-11/926 dated 06.06.2011 of Child Welfare Committee and after going through the same, the witness stated that the said order bears her signature at point A. The said order is at Ex. PW-1/A. Thereafter, attention of PW-1 was taken to Rule 27 (18), order of short term placement pending enquiry to which the witness deposed that the said order was written by her on 06.06.2011 bearing her signatures at point A, B and C. The said order is at Ex. PW-1/B. In her cross-examination by Ld. Counsel for Mohd. Kalam, PW-1 deposed that they are a Committee of five members and one of them was a Chairperson. She further deposed that the order at Ex. PW-1/A was the opinion of five members Committee and the same bears signatures of all the members. In her further cross-examination by Ld. Counsel for accused Virender Tanwar and Monika Tanwar, PW-1 admitted that the victim has made a statement from Digitally signed FIR No. 50/2011 by PADMA State Vs. Motiyar Reman & Ors. PADMA LANDOL Date: Page 5 of 17 LANDOL 2024.05.09 17:35:03 +0530 point 'A' to point 'A1' at Ex PW-1/B before the Committee. She further deposed that the child A was produced before the Committee on 06.06.2011 by the Children's Home for Girls, Nirmal Chhaya. However, she did not remember the date when she was restored to her family. Witness further failed to remember the time when she was produced before the Committee on 06.06.2011 and when she left from the Committee. PW-1 also failed to recall the age disclosed by the Victim 'A' when she was produced before her. She further deposed that the Victim 'A' was produced from Children's Home for Girls by the Welfare officer but she did not remember whether she was accompanied with any of her relative or not. PW-1 further deposed that she did not go to the hospital with the Victim 'A'. She further could not recall whether she had seen the age proof/birth certificate of the Victim 'A'. She further could not recall whether the relative or the parents of the victim gave any age proof/ document to her. PW-1 conceded that she did not know victim 'A' before the incident. She further deposed that she did not remember whether parents of victim 'A' had met her after the pronouncement of the order. She denied the suggestion that she has filed a wrong and false report and that she has filed the age report according to her whims. She has also denied the suggestion that the age was not verified by her or by the IO from the school certificate.
6. PW-2: Dr. Vikas Yadav deposed that from 2010 to 2012 he was posted as Senior Resident at Deen Dayal Upadhaya Hospital. Attention of the witness was taken to OPD No. 234736 dated 15.06.2011 of the patient namely 'A' (complainant/victim) to which he stated that on the basis of the X-ray's report he had conducted the bone age test of the above mentioned patient/complainant. PW-2 further deposed that the final result of the test was that the age of patient complainant was more than 14 years and less than 16 years. That the report of the same Ex. PW-2/A bears his signature at point A. Digitally signed by PADMA FIR No. 50/2011 PADMA LANDOL State Vs. Motiyar Reman & Ors. LANDOL Date:
2024.05.09 Page 6 of 17 17:35:11 +0530 In his cross-examination, PW-2's attention was taken to Ex. PW- 2/A and he deposed that the age of the victim at point B column was filled by a person of the Medical Board after asking the same from the patient/complainant/ relative. He further deposed that he did not remember who had brought the patient/complainant before him. PW-2 denied the suggestion that he had prepared the report at the instance of the police officials. He deposed that the police persons were not present when he had prepared the report and that time he was alone.
7. PW-3: Dr. Uma K deposed that in the year 2011, he was posted as a Doctor (CMO) at DDU Hospital. He further deposed that he was also a member of Age Estimation Board and he signed the report of age estimation in the present case being the member of the Board. Attention of the witness was taken to the report of medical examination for assessment of age. After going through the same, the witness deposed that as per the report, the final opinion of the age of the candidate was between 14-16 years. That the report at Ex. PW3/A bears his signature at point A. In his cross-examination, PW-3 deposed that he conducted general examination of the candidate as a Doctor. He deposed that he cannot say the exact age of the candidate. PW-3 admitted that he had conducted the physical examination of the candidate which is mentioned in the report at point B. Witness denied the suggestion that the age of the candidate was more than 18 years and that the report had been prepared at the instance of IO. In his further cross-examination by Ld. Counsel for Virender, PW-3 deposed that the information given regarding the particulars of the candidate mentioned on the report might have been filled by the IO. He admitted that only the estimate age of the candidate could be assessed by the Board.
Digitally
signed by
PADMA
PADMA LANDOL
LANDOL Date:
2024.05.09
17:35:19
FIR No. 50/2011 +0530
State Vs. Motiyar Reman & Ors. Page 7 of 17
8. PW-4: Retd. SI Sudesh Pal deposed that on 03.06.2011 he was posted at PS Inderpuri as SI. His duty hours were from 08:00 A.M to 08:00 P.M. On that day at about 04:30 P.M one lady namely Monika Tanwar came to PS with one girl namely Ayesha. Monika Tanwar narrated entire incident that the girl namely Ayesha has stolen one ladies suit from her residence. Thereafter, they were produced before the concerned SHO and on his instructions, the girl Ayesha was taken for medical examination as her right hand was injured. The medical examination of Ayesha was got conducted at RML hospital in the presence of W/Ct. Reena. After the medical examination W/Ct. Reena along with Ayesha came back to PS. On the instructions of SHO, Ayesha was admitted in Nirmal Chhaya(Shelter Home) for women. On 06.06.2011, statement of Ayesha was recorded by PW-3 Chairperson, namely Poonam Singh. The same is at Ex- PW4/A bearing his signatures at point A. Thereafter, on the instructions of Poonam Singh bone age X-Ray of Ayesha was conducted in which the age of Ayesha was revealed from 14 years to 16 years. PW-4 further deposed that on 09.06.2011 on the statement of Poonam Singh & Ayesha, rukka was prepared. The same is at Ex-PW4/B bearing his signatures at point A. Thereafter, the FIR was registered U/s. 23/26 JJ Act and U/s 323 IPC. On dated 15.07.2011 the arrest of Virender Singh Tanwar and Monika Singh Tanwar was made vide memo Ex-PW4/C & Ex-PW4/D bearing his signatures at point A and the arrest of Motiyar was made on 08.07.2011 vide memo Ex-PW4/E bearing his signatures at point A and the arrest of Kalam was also made on 05.08.2011 vide memo Ex-PW4/F bearing his signatures at point A. That the personal search of all the accused persons were also made vide memo Ex-PW4/G, Ex-PW4/H bearing his signatures at point A. Thereafter, after completion of chargesheet, he filed the challan. Thereafter, Ld. APP sought permission of the court to cross examine the witness as he was not revealing the entire facts. Same was allowed. Then in his cross-examination by Ld. APP, PW-4 admitted that the disclosure Digitally signed by PADMA LANDOL FIR No. 50/2011 PADMA Date:
State Vs. Motiyar Reman & Ors. LANDOL 2024.05.09 Page 8 of 1717:35:33 +0530 statement of accused Motiyar and Kalam were also recorded. The same is at Ex- PW4/I, Ex-PW4/J bearing his signatures at point A. PW-4 failed to remember, if he had recorded the disclosure statements of the other accused persons. PW-4 correctly identified accused Virender and Monika in court.
In his cross-examination by Ld. Counsel for accused, PW-4 deposed that on the date of his duty, he did not mark his attendance in the PS. That the inquiry was made from Ayesha for 5 minutes. At about 04:45 P.M on the instructions of SHO Ayesha was taken for medical examination. However, he could not tell the exact time when the medical examination was conducted. He further deposed that he did not remember, if the efforts were made to contact the Ayesha's parents. PW-4 also deposed that he did not meet with the parents of Ayesha. He conceded that the exact date of birth of Ayesha can only be disclosed either by her parents or by the school record. He failed to tell the education qualification of Ayesha. He deposed that Ayesha had told him that she was educated / literate and signed in Bangla. That no age verification of Ayesha was done by him from her school record. Witness further conceded that he have never visited Bengal for the purpose of investigation of this case. He denied the suggestion that no fair investigation was done by him. He admitted that Ayesha was Bengali and she was unable to speak & understand Hindi Language. However, he deposed that he did not arrange any language translator for Ayesha to record her statement. PW-4 further denied the suggestion that the statement of Ayesha is fabricated and that he did not understand the language of Ayesha. Witness voluntarily stated that the statement of Ayesha was recorded by Poonam Singh, CWC Chairperson. He again said that Ayesha was speaking in Hindi language. Witness further deposed that he did not record statement of any person from any placement agency. He voluntarily stated that accused Motiyar Rehman himself is from one placement agency. PW-4 admitted that Motiyar Rehman is Uncle (mama) Digitally signed by PADMA LANDOL FIR No. 50/2011 PADMA Date:State Vs. Motiyar Reman & Ors. LANDOL 2024.05.09 Page 9 of 17
17:35:43 +0530 of Ayesha. That he did not conduct any inquiry from the neighbors of accused Monika and Virender regarding the employment of Ayesha. He voluntarily stated that he made an effort, however no one gave any information by stating that they are not aware about such employment. Witness denied the suggestion that Ayesha was never working/employed in the house of accused persons, namely Ms. Monika & Virender. He further deposed that he never spoke to the parents of Ayesha though he tried to contact them through telephone. Witness also denied the suggestion that he spoke to her parents on phone and they had informed him that their daughter is not working as a domestic help anywhere in Delhi. That he did not issue any notice to the parents of Ayesha to come to Delhi. He also denied the suggestion that accused Monika & Virender are falsely implicated in the present matter and that no fair investigation has been taken place.
9. The statement of both the accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded on 06.05.2024 and they were put all the incriminating circumstances, appearing against them in the prosecution evidence. Both the accused pleaded that they are innocent. Accused Monika stated that the complainant/victim was caught red handed by her while committing theft of a ladies suit at her home. Accused Virender stated that they had employed the victim through a registered placement agency and they had no reason to disbelief them when they represented the victim as a major having one year work experience. He further stated that they had employed the victim only to take care of their two minor children and they already had a domestic help at the relevant time. They, however, chose not to lead DE.
CONTENTIONS OF THE PARTIES Digitally signed by PADMA PADMA LANDOL LANDOL Date:
2024.05.09 17:35:51 FIR No. 50/2011 +0530 State Vs. Motiyar Reman & Ors. Page 10 of 17
10. Learned Assistant Public Prosecutor for the State argued that the prosecution has proved its case beyond all reasonable shadow of doubts by examining four witnesses though the complainant had to be dropped due to her continuous absence. It is further contended that the PWs have supported the case of prosecution and have successfully proved the ingredients of the provisions in hand. Accordingly, conviction of both the accused was prayed.
11. Per contra, learned counsel for the accused argued that the prosecution has failed to examine any eye-witness to the incident in question. The prosecution witnesses from PW-1 to PW-3 are formal witnesses and PW-4 is the IO who conducted the investigation, however, none of them is the eye-witness, hence, prosecution has failed to prove its case beyond all reasonable shadow of doubts. Hence, case is liable to be dismissed and both the accused deserves to be acquitted of the present offence.
POINTS OF DETERMINATION
12. After giving anxious consideration to the rival contentions and perusing the case file meticulously, this court is of the opinion that at the heart of the matter is a determination as to:
i) whether the accused Virender Tanwar and Monika Tanwar assaulted, abandoned, exposed or wilfully neglected the complainant/victim or caused or procured her to be assaulted, abandoned, exposed or neglected in a manner likely to cause her unnecessary mental or physical suffering; and
ii) whether the accused Monika Tanwar with the intention of causing hurt to the complainant/victim or with the knowledge that she is likely thereby to cause hurt to complainant/victim, and does thereby caused hurt to her.
FINDINGS AND ANALYSIS: Digitally
signed by
PADMA
PADMA LANDOL
LANDOL Date:
2024.05.09
17:35:59
FIR No. 50/2011 +0530
State Vs. Motiyar Reman & Ors. Page 11 of 17
13. At the outset, it would be beneficial to peruse the provisions of law in hand.
Sections 23 of JJ Act, 2000 which deals with 'Punishment for cruelty to juvenile or child'. The provision read as follows:
"Whoever, having the actual charge of or control over, a juvenile or the child, assaults, abandons, exposes or wilfully neglects the juvenile or causes or procures him to be assaulted, abandoned, exposed or neglected in a manner likely to cause such juvenile or the child unnecessary mental or physical suffering shall be punishable with imprisonment for a term which may extend to six months, or fine, or with both."
Further Section 323 IPC, 1860 deals with "Punishment for voluntarily causing hurt" as:
"Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both."
Further Section 321 IPC, 1860 defines "Voluntarily causing hurt." as:
"Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said "voluntarily to cause hurt."
14. In order to bring home the guilt against the accused, prosecution wished to examine the complainant/victim however despite service of summons on multiple occasions the witness failed to appear and prosecution absolutely failed to secure the appearance of the complainant in the witness box. Even coercive Digitally signed by FIR No. 50/2011 PADMA State Vs. Motiyar Reman & Ors. PADMA LANDOL Page 12 of 17 LANDOL Date:
2024.05.09 17:36:05 +0530 process was issued through the office of DCP concerned three times and despite execution of bailable warrants, complainant failed to appear. Due to repeated failure of complainant to appear, she was dropped from the list of witnesses vide order dated 13.04.2023. Summons to another witness namely Poonam Singh, Welfare Officer, CWC was not served as she had left CWC and her whereabouts were not known. Hence, on 08.11.2019, she was also dropped from the list of witnesses along with three other witnesses. Thereafter, prosecution examined 4 witnesses to prove its case.
15. PW-1 is a member from JJB-IV Delhi who only proved the order of CWC Board [Ex. PW-1/A] whereby it is mentioned that the juvenile's medical examination was conducted at Dr. RML Hospital on 03.06.2011. That her right hand/arm was x-rayed and plaster was casted. Further that the juvenile was to be provided medical treatment at DDU Hospital and called for her x-ray report by 08.06.2011. PW-1 further proved the order [Ex. PW-1/B] whereby board had ordered for a short term placement of juvenile pending enquiry. She has admitted that the complainant/victim had made a statement (as reflecting from point'A' to 'A1') before the CWC Board that her employers were good with her and only on 03.06.2011, Ms. Monika blamed her for stealing some clothes.
16. PW-2 is a doctor from Deen Dayal Upadhyay Hospital who stepped in the witness box to prove Ex. PW-2/A i.e. report of bone age test of complainant/victim which he had prepared on the basis of her x-ray report. He has deposed that the bone age of complainant/victim was found to be 14 to 16 years old.
17. PW-3 is also a doctor from Deen Dayal Upadhyay Hospital who was a member of Age Estimation Board who proved the report Ex. PW-3/A as per which the Digitally signed by FIR No. 50/2011 PADMA State Vs. Motiyar Reman & Ors. PADMA LANDOL Page 13 of 17 LANDOL Date:
2024.05.09 17:36:17 +0530 age of the complainant/victim was 14 to 16 years old. She has conceded that she cannot tell the exact age of the complainant and that the report pertains to the estimated age of complainant.
18. PW-4 is the IO of the case. He only testified the fact that on 03.06.2011 the accused Monika had come to the PS with the complainant/victim and alleged that the complainant/victim had stolen a ladies suit from her house. Thereafter, complainant/victim was medically examined as her right hand/arm was injured. Then she was admitted to shelter home, Nirmal Chhaya. After that, statement of complainant/victim was recorded by Ms. Poonam Singh, Chairperson CWC. Then bone age test of the complainant/victim was conducted. Pursuant to this, on the statement of Ms. Poonam Singh and complainant/victim, present FIR was registered and investigation ensued.
19. From above, it is seen that prosecution has failed to examine any eye-witness, be it victim herself or the neighbours of the accused persons or the parents/relative of the victim. In fact, IO/PW-4 has conceded during his cross-examination that he never met the parents of victim. He could not even recall if he had made any efforts to contact the parents of the victim. IO/PW-4 has also conceded that he did not make efforts to verify the age of victim from her school record specially when the victim herself had stated that she had studied till 5 th standard. IO/PW-4 has also admitted that he did not conduct any inquiry from the neighbours of accused Virender and Monika regarding the employment of victim. Such is the investigation done by the IO in this case.
20. It is a settled law as well as matter of common knowledge that evidence of complainant/ victim and other public witnesses is the best available evidence and the case can be proved beyond reasonable doubts on the basis of testimony of said Digitally signed by PADMA PADMA LANDOL FIR No. 50/2011 Date:
LANDOL 2024.05.09
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witness only. In the present case, the victim has failed to appear before this court to narrate the incident in person and testify to her own statement made before the CWC Board as well as SDM. It is also to be noted that the complainant/victim has nowhere alleged any kind of cruelty, assault, abandonment, exposure or negligence by the accused persons so as to cause unnecessary mental or physical suffering to her. In fact, in her statement given before CWC Board, she has stated that her employers were good with her. The Hon'ble High Court of Kerala in Harikrishnan & Ors. v. State of Kerala 2023 SCC OnLine Ker 343, has categorically held that:
"7. In order to attract Section 23 of JJ Act, there should be a specific allegation that the petitioner/employer was having the actual charge or control over a juvenile and that he assaulted, abandoned, exposed or wilfully neglected the juvenile or causes or procures him to be assaulted, abandoned, exposed or neglected in a manner likely to cause such juvenile or the child unnecessary mental or physical suffering."
Further, while relying on earlier judgment in Khalid L.K v. Sub Inspector of Police, Kasaragod (2015) (4) KHC 180, the Hon'ble Court has held that mere fact that juvenile was aged 15 years and that he was made to work in an establishment, would not by itself attract the offence under Section 23 of the JJ Act. In the absence of the allegation whatsoever in the final report or in the statement of the witnesses that the petitioner has committed any of the objectionable acts as detailed in Section 23 of the JJ Act, the offence under Section 23 JJ Act is not attracted. The dictum laid down in this case squarely applies to the facts of the present case.
21. There is no dispute that the victim was in the actual charge or control of both the accused and the juvenility of the victim can also be ascertained from the reports [Ex. PW-2/A and Ex. PW-3/A] which are corroborated by the testimonies of PW-2 and PW-3, however, when there is not a single evidence, either ocular or documentary to Digitally FIR No. 50/2011 signed by PADMA State Vs. Motiyar Reman & Ors. PADMA LANDOL Page 15 of 17 LANDOL Date:
2024.05.09 17:36:34 +0530 prove that the accused persons Virender and Monika committed any kind of cruelty, assault, abandonment, exposure or negligence against the victim at any point of time, so as to cause her mental or physical suffering, it shall not be within the legal ambit to hold it otherwise and holding such shall also be opposed to the well-known legal maxim, "Let Hundred Guilty Be Acquitted But One Innocent Should Not Be Convicted".
22. In view of the above discussions, prosecution has miserably failed to prove the 1st point for determination against the accused persons beyond reasonable doubt.
23. With respect to the allegations u/s. 323 IPC for voluntarily causing hurt against accused Monika Tanwar, there is not a single witness to depose against her. The only eye-witness to the said incident is stated to be the complainant/victim herself but as already discussed, she has failed to appear despite service of summons and execution of bailable warrants on several occasions. The MLC of the victim is on record as per which the injury is mentioned as "bruises on right hand, scratch mark, swelling with tenderness also present." However, prosecution has failed to examine the concerned doctor who had prepared the MLC, for the reasons best known to them. Hence, the MLC is also not proved. Even otherwise, any kind of injury on the body of complainant/victim cannot be imputed upon the accused Monika solely for the reason that victim was in the custody of the said accused at the relevant time. Such a conclusion will be far-fetched and per se illegal.
24. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and the 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'. In the case titled as Dr. S. L. Goswami vs Digitally signed by PADMA LANDOL PADMA Date:
FIR No. 50/2011 LANDOL 2024.05.09
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State Vs. Motiyar Reman & Ors. +0530 Page 16 of 17
State of Madhya Pradesh (1972) 3 SCC 22, the Hon'ble Supreme Court has held that:
"i) The onus of proving all the ingredients of an offence is always upon the prosecution and at no stage does is shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less.
ii) The standard of proof to prove a defence plea is not the same as that which rests upon the prosecution. Where the onus shifts to the accused, and the evidence on his behalf probabilizes the plea he will be entitled to the benefit of reasonable doubt".
25. In view of the above discussions, prosecution has also miserably failed to prove the 2nd point for determination against the accused Monika Tanwar beyond reasonable doubt.
FINAL ORDER
26. Therefore, in view of above discussion, the conscience of this Court is completely satisfied that the prosecution has miserably failed to prove its case beyond reasonable doubt. Accordingly, accused Virender Tanwar and Monika Tanwar are hereby acquitted of offence punishable u/s. 23 JJ Act, 2000. Accused Monika Tanwar is also acquitted of the offence punishable u/s. 323 Digitally signed IPC, 1860. by PADMA PADMA LANDOL LANDOL Date:
2024.05.09 17:34:03 +0530 PRONOUNCED IN OPEN COURT (PADMA LADOL) TODAY ON 09th MAY, 2024 MM-04, NEW DELHI DISTRICT/PATIALA HOUSE COURTS, DELHI FIR No. 50/2011 State Vs. Motiyar Reman & Ors. Page 17 of 17