Delhi District Court
Cr. Case No. 3079/2017 State vs . Yogesh Kumar Page 1 Of 16 on 11 November, 2022
IN THE COURT OF METROPOLITAN MAGISTRATE-07,
SOUTH-WEST, DWARKA COURTS,
NEW DELHI
Presided over by- Ms. Medha Arya, DJS
Cr. Case No. -: 3079/2017
Unique Case ID No. -: DLSW020094762017
FIR No. -: 170/12
Police Station -: Chhawla
Section(s) -: 363 IPC
In the matter of -
STATE
VS.
YOGESH KUMAR
S/o Sh. Hari Om
R/o RZ D-45, New Roshan Pura,
Najafgarh, New Delhi
.... Accused
1. Name of Complainant : Paras Kumar
2. Name of Accused : Yogesh Kumar
Offence complained of or
3. : 363 IPC
proved
4. Plea of Accused : Not guilty
Date of commission of
5. : 27.07.2012
offence
6. Date of Filing of case : 20.04.2017
7. Date of Reserving Order : 31.10.2022
8. Date of Pronouncement : 11.11.2022
9. Final Order : Acquitted.
Cr. Case No. 3079/2017 State vs. Yogesh Kumar Page 1 of 16
Argued by -: Sh. Naween Kumar, Ld. APP for the State.
Ld. counsel for the accused.
"Debile fundamentum fallit opus"
A weak foundation destroys the work upon which it is built.
The case of the prosecution rested on the testimony of the victim primarily, which does not inspire the confidence of this court. She resiled from her previous statement recorded under Section 164 CrPC, and left obvious gaps in her testimony. Having successfully exposed pitfalls in the case of prosecution, accused is hereby acquitted.
BRIEF STATEMENT OF REASONS FOR THE DECISION -:
1. Succinctly, it is the case of the prosecution that Complainant/Rajni approached the police authorities with her complaint that on 27.07.2012, her minor daughter, being 15.5 years old, left for her school at 6:30 in the morning, but did not return.
The complainant stated that she suspects that one Yogesh, the accused herein, who is a resident of new Roshanpura Najafgarh, has kidnapped her daughter. On the basis of this complaint, subject FIR was registered, and investigation commenced. Thereafter, the minor girl i.e. victim M, herself reached the police station on 28.07.2012, after which she was taken for her medical examination. The victim as well as her mother refused her internal medical examination. Thereafter, statement of the victim under section 164 CrPC was recorded. Subsequently, fresh permission to examine her was taken, and the victim was then medically examined at DDU Hospital. Thereafter, accused Yogesh Kumar was arrested, before being released on police bail. Chargesheet for the offence punishable under section 363 CrPC was then filed against the accused.
Cr. Case No. 3079/2017 State vs. Yogesh Kumar Page 2 of 162. Cognizance of the offence was then taken, and the accused was summoned to face trial. When the accused entered appearance, copy of the chargesheet was supplied to him in compliance of Section 207 C.r.P.C. Thereafter, a formal charge was framed against the accused, and the accused pleaded not guilty thereto. The proceedings in the case were accordingly adjourned for recording of PE.
3. At the stage of PE, the prosecution first examined the complainant as PW1.
3.1 In her examination in chief, PW1 supported the version of the prosecution. She deposed as to how she had made a complaint on 27.07.2012, when her daughter had not returned back home, and on 28.07.2012, she was recovered by the police. PW1 deposed that then she was called to the police station. She deposed that at that time, her daughter was threatened by the accused, and thus did not reveal true facts of the case. She further deposed that for a duration of 10 days, her daughter was at Nari Niketan.
3.2 In her cross-examination, PW1 deposed that she does not remember dates of birth of her children. She deposed that she had not given any age proof of her daughter to the police, and volunteered that no such proof was ever sought from her. She deposed that she met her daughter in the police station on the day following the day on which she had made a complaint. She accepted as correct the suggestion that the accused was not present at the Cr. Case No. 3079/2017 State vs. Yogesh Kumar Page 3 of 16 police station at that time. She deposed that she was not allowed by the police officials to take her daughter home. She testified that she does not remember, if police had recorded the statement of her daughter in her presence.
4. The prosecution next examined the victim 'M' as PW2. In her examination in chief, PW2 resiled completely from her statement recorded under section 164 CrPC. She deposed that the accused had insisted on dropping her to school, because of which she sat on the bike of the accused. She further deposed that the accused then changed the route, and refused to drop her to her school. She deposed that the accused threatened her of dire consequences to her family and her brothers, because of which she was scared. In this condition, the accused took her to the house of his friend in Rohtak. She deposed that accused had also attempted to force himself upon her, but she resisted. Thereafter police officers called accused at his phone number, as a result of which he dropped her at Saibaba Mandir, Najafgarh, Delhi on the next day, at around noon. At the said Mandir/Temple, the parents of the accused met her, and asked her to not give any statement against the accused, whereafter she was dropped at the police station. She deposed that then her parents also came to the police station. Her statement was recorded, but she was not allowed to leave the police station with her parents, and was instead sent to Nari Niketan. She deposed that because of the threat extended to her by the accused, she had stated to the police that she had gone with the accused of her own accord.
4.1 In her cross examination, she deposed that many Cr. Case No. 3079/2017 State vs. Yogesh Kumar Page 4 of 16 children of her locality were studying in the same school, and sometimes her friends used to accompany her to the school. She deposed that on previous occasions also, she had gone to the school along with accused. It was suggested to the victim that she used to accept the ride offered by the accused on his bike willingly, which suggestion was accepted by the witness. She deposed that on the day of the incident, accused had offered her to take her to the school, but she had refused. She accepted the suggestion that in her statement under 164 CrPC, she had stated that her cousin had seen her riding the bike with the accused because of which she got scared, and asked him to take her somewhere far. She accepted the suggestion that she had informed the accused that her cousin had seen her with him on his bike. The victim was also confronted with other portions of a statement under section 164 C.r.P.C., wherein she has stated that it was only upon her insistence that the accused had taken her to the house of his friend, although he did not want to, and that the accused never tried to force himself upon her. She deposed that she had stated these facts due to the pressure of the accused. She accepted as correct the suggestion that at no point in time did she make any complaint against the accused regarding the fact she was pressurised by him. She accepted as correct the suggestion that nowhere prior to the recording of her testimony as PW2, had she told the police that the accused had changed the route and had taken her to the house of his friend without her permission. She deposed that she had duly informed the police officials that the accused had dropped her at Saibaba Mandir, where he had also called his parents, but when confronted with her statement under section 161 CrPC, she admitted that these facts are not recorded therein. She denied the Cr. Case No. 3079/2017 State vs. Yogesh Kumar Page 5 of 16 suggestion that she has falsely implicated the accused. She also denied the suggestion that she deliberately did not provide any age proof to the investigating officer, as she was a major at the time of the incident .
5. The third witness examined by the prosecution was constable Rakesh Kumar. PW3 prove the arrest memo of the accused Ex. PW3/A, his personal search memo Ex. PW3/B and Ex. PW3/D, being the pullanda containing the specimens of blood and semen of the accused.
5.1 In his cross-examination, he denied that the accused had never made any disclosure statement, and the same has been falsely recorded by him.
6. Prosecution next examined W/Ct. Indu as PW4. PW4 deposed that she had taken the victim 'M' to Nari Niketan, Nirmal Chhaya, Hari Nagar from the police station, and the next day she had produced her for recording of her statement under 164 CrPC. She deposed that upon the application of the mother of the victim, the victim was medically examined at DDU hospital. PW4 was not cross examined despite opportunity.
7. The prosectuion next examined PW5 SI Hari Singh. PW5 deposed that on the basis of the rukka prepared by him, the subject FIR was registered. He deposed that on 28.07.2012, the complainant reach the police station along with the victim, where after the statement of the victim under section 161 CrPC was Cr. Case No. 3079/2017 State vs. Yogesh Kumar Page 6 of 16 recorded by ASI Sandeep Kumar. He deposed that on 31.07.2012, the victim was taken from Nari Niketan to the Court Complex, where her statement under section 164 CrPC was recorded, and thereafter, her medical examination was conducted at DDU hospital. PW5 deposed as to how the accused was arrested subsequently.
7.1 In his cross-examination, he deposed that the complainant had reached police station at about 5:55 PM on 27.07.2012, but he does not remember, if any of her relatives had accompanied her. He testified that he neither prepared any site plan, nor recorded the statement of the cousin of the victim.
8. PW6 SI Devendra Kumar deposed that when he was deputed as the investigating officer, the forensic examination of the samples were still pending, and thereafter he was transferred. PW5 was not cross-examined despite opportunity.
9. Next prosection examined PW7 Ct. Mamta, who deposed that she had accompanied the victim on 28.07.2012 for her medical examination. PW7 was not cross examined by the accused despite opportunity.
10. PW-8 Dr. A.S. Yadav deposed in his examination in chief that he had prepared the MLC of the victim Ex. PW8/A as well as the MLC of the accused, Ex. PW8/B. 10.1 In his cross-examination, he accepted as correct the suggestion that the victim had refused any gynaecological Cr. Case No. 3079/2017 State vs. Yogesh Kumar Page 7 of 16 examination.
11. PW9 Retired SI Shambhu Shah deposed in his examination in chief that he had procured the FSL results.
11.1 In his cross-examination, he deposed that he does not know anything qua the investigation of the present case, prior to August 2015.
12. PWD 10 HC Menon deposed that upon receipt of information from the duty officer, he had handed over the copy of the FIR as well as the original tehrir to the IO, after which he had accompanied the IO to trace the victim, but unsuccessfully.
12.1 In his cross examination, he denied the suggestion that the subject FIR is ante timed. The accused admitted the genuineness of the subject FIR, the statement of the victim under section 164 CrPC, as well as the MLC dated 31.07.2012, because of which the other witnesses were dropped by the prosecution.
13. No other witnesses were examined by the prosecution, and PE was closed thereafter.
13.1. In order to accord an opportunity to the accused to explain the incriminating circumstances appearing against him at trial, his statement was recorded under section 313/281 CrPC. The accused submitted to the court that he has been falsely implicated in the present case, because of a fight he had had with the brother of Cr. Case No. 3079/2017 State vs. Yogesh Kumar Page 8 of 16 the victim . The accused opted to not lead any evidence in the affirmative, and the proceedings accordingly were listed for final arguments.
14. Final arguments have been heard on behalf of both the parties. Record Perused. Considered.
15. The accused has been charged with the offence of Kidnapping. Kidnapping is defined under Section 361 IPC.
Section 361 IPC- 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.
Section 363 IPC is also relevant-
Section 363. Punishment for kidnapping- Whoever kidnaps any person from 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.
16. In order to establish the guilt of the accused, the prosecution had to prove-
a) That the victim was taken away or enticed from the custody of her legal guardian
b) that she was a minor when the offence happened.Cr. Case No. 3079/2017 State vs. Yogesh Kumar Page 9 of 16
17. To ascertain, if the first ingredient of the offence has been established, testimony of the victim, who deposed as PW2 is instructive. She deposed in her examination in chief that she got on the bike of the accused at his persuasion, under the belief that the accused would driver her school. However, the accused suddenly took a different route, and when she resisted the same, he threatened her with dire consequences.
17.1 In her cross-examination, the victim was confronted with her statement recorded under section 161 and 164 CrPC. The latter of the two has more sanctity, in view of the fact that the same was recorded by a Judicial Magistrate. In the said statement, the victim stated that she got on the bike of the accused of her free will, and while they were going to the school, she was spotted by her cousin, whereupon became scared that her parents shall scold her, and thus persuaded the accused to take her to a far place. When confronted, the victim stated that she had made the statement under a threat from the accused.
18. However, in her cross-examination, she admitted that on earlier occasions also, she had ridden to her school with the accused. She deposed that on these occasions, she would get on the bike of the accused freely and without any pressure. This creates a doubt on her veracity as a witness. Further, she deposed that many children from her locality used to go to the same school, and the distance between her residence to the school was 15 to 20 minutes. Despite this, she did not explain, as to why she did not raise any hue and cry when the accused decided to change the route. She did not Cr. Case No. 3079/2017 State vs. Yogesh Kumar Page 10 of 16 even explain at what point the accused took a different route to the school.
18.1 Further, in her a cross examination, she admitted that her cousin had spotted her on the bike with the accused, and she had told this fact of the accused are right then. This admission plugs loop hole in her testimony, and is indicative of the fact that her statement recorded under section 164 CrPC contains the actual version of the events that had taken place.
19. The prosecution failed to examine the said cousin of the victim, namely Viresh, who could have testified as to the facts of the case, whether he had indeed seen the victim along with the accused on the bike the day, at what point that two of them changed the route, where the two were spotted by him. Until PW2 took the witness stand, the prosecution could place reliance only on the statement of the victim under section 161 CrPC and 164 CrPC respectively, in both of which statements she had stated that she had persuaded the accused to take her with him, after being spotted by her cousin. Despite this, not only was this cousin never made a witness, his statement was also never recorded. He was never made part of the investigation. This is a major loophole in the case of the prosecution.
20. PW2 also stated that accused had taken her to the house of his friend, where he had tried to force him self upon her. However, none of these facts were disclosed by her to the investigating officer at any stage during trial. Prosecution failed to Cr. Case No. 3079/2017 State vs. Yogesh Kumar Page 11 of 16 bring out the contours of the offence in this regard also. Exactly what transpired in the house of that friend could have been best explained by the said friend, but no efforts were made to Even name him, let alone trace him. PW2 deposed in her own testimony that she was never taken to the house of this friend by the investigating officer. No explanation was given by PW2 regarding the role of this friend, whether he was present at the house, didhe help her in any manner etc. Why prosecution decided to conceal evidence of such an important nature can best be explained by it.
21. PW-2 then desposed that the accused had received call from police officials, in consequence to which he dropped her back to Delhi near Saibaba Mandir. Even this fact was not stated by her in any of the statements. In her testimony, she deposed that the parents of the accused had met her at the temple, and they had then taken her to the police station. Even this fact was further stated by the victim only in her testimony as PW2, and has no corroboration. In fact, the investigating officer SI Harkishan, while deposing as PW5, deposed that the victim had come to the police station on 28.07.2012 along with the complainant, being her mother. There is an apparent contradiction in these two versions, which was never explained by the prosecution.
22. The conduct of the victim of not joining the company of her parents upon her recovery, and instead being sent to Nari Niketan is also indicative of the fact that she was scared to join the company of her parents. Further, the victim stated that at the time that she had made her statement under section 164 CrPC, she was Cr. Case No. 3079/2017 State vs. Yogesh Kumar Page 12 of 16 under the threat of the accused. However, the prosecution has not explained as to why, at any subsequent point in time, no request was made from the victim to record a subsequent statement, clearly elaborating the true facts.
23. The subsequent conduct of the accused, of himself bringing the victim back to Delhi, reinforces the veracity of the statement of the victim under section 164 CrPC, to the effect that in fact she had persuaded the accused to take her to a far place.
24. In view of this scenario, it cannot be held at the accused at any given point in time took or enticed the victim out of the control of her legal guardian. It appears that the victim herself had the intention of joining the company of the accused, and the latter had no role to play, at any point in time, to solicit or take away the victim away from her legal guardian. For this reason, he can not be convicted for the offence punishable under Section 363 IPC. At this juncture, this court seeks guidance from the law laid down by the Hon'ble Supreme Court of India in S. Varadarajan vs State Of Madras 1965 AIR 942, wherein it was held, "It must, however, be borne in mind that there is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstance can the two be regarded as meaning the same thing for the purposes of s. 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have Cr. Case No. 3079/2017 State vs. Yogesh Kumar Page 13 of 16 been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian. It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. In our, opinion if evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardian's house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfillment of the intention of the girl. That part, in our opinion, falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to "taking"."
25. It is pellucid, in view of the above discussion that since the prosecution failed to establish the element of taking or incitement, the first ingredient of the offence could not be established by it Even the second ingredient of the offence, being Cr. Case No. 3079/2017 State vs. Yogesh Kumar Page 14 of 16 the fact that the victim was a minor at the time of the incident was not established by the prosecution categorically. To prove that the victim was a minor, the prosecution relied only upon the testimonies of PW1 and PW2. PW1/mother of the victim, does not much and the case of the prosecution, in as much as she testified in her cross examination that she is illiterate, and does not know the age of the victim, or her exact birth date. This court has examined above as to how the testimony of PW2 does not inspire confidence. In any event, the prosecution, for reasons best known to it, relied only upon oral testimony to establish the minority of the Victim, and no steps were taken by it to adduce on record the age proof of the victim. PW1 deposed that the victim had passed class Xth examinations. Passing certificate of the victim was still never adduced on record by the prosecution, to categorically establish that the victim was a minor on the date of the incident. Although the relevant portion of the school register of the victim has been placed on the court file, the same was never tendered into evidence, and cannot be read. As such, the prosecution failed to establish even this ingredient of the offence. In Mussauddin vs State of Assam (2009) 14 SCC 541 Hon'ble Supreme Court has held that:
"11. It is the duty of the party to lead the best evidence in its possession which could throw light on the issue in controversy and in case such material evidence is withheld, the court may draw adverse inference under Section 114 illustration (g) of the Evidence Act, 1872 notwithstanding that the onus of proof did not lie on such party and it was not called upon to produce the said evidence (vide Gopal Krishnaji Ketkar v. Mohd. Haji Latif: AIR 1968 SC 1413.)"
In the instant case, the prosecution neither brought on Cr. Case No. 3079/2017 State vs. Yogesh Kumar Page 15 of 16 record the relevant witnesses, which could have helped it weave a seamless case against the accused, being the cousin of the complainant, who was named by her from the very inception, as well as the friend at whose house she was taken by the accused, which fact was also mentioned by the victim in her initial statement itself. The prosecution further failed to bring on record any documentary evidence to establish the minority of the victim. In such circumstances, where the best evidence available to it was not adduced on record by the prosecution, the accused has been able to create a reasonable doubt in his favour. The accused is accordingly acquitted of the offence alleged against him.
File be consigned to record room after due compliance. Pronounced in open court on 11.11.2022 in presence of accused person.
This judgment contains 16 pages and each page has been signed by the undersigned.
Digitally signedMEDHA by MEDHA ARYA ARYA Date: 2022.11.14 17:22:08 +0530 (MEDHA ARYA) Metropolitan Magistrate - 07 South-West District, Dwarka Courts, New Delhi, 11.11.2022 Cr. Case No. 3079/2017 State vs. Yogesh Kumar Page 16 of 16