Delhi District Court
State vs . Ritu Kumar Jha & Ors. on 7 November, 2022
IN THE COURT OF METROPOLITAN MAGISTRATE03, NORTHEAST
KARKARDOOMA COURTS, DELHI
Presided by Nitish Kumar Sharma
F.I.R. No. : 532/2006
Police Station: Khajuri Khas
State Vs. Ritu Kumar Jha & Ors.
U/S 363/34 IPC
(a) Case ID number/CR No. : 465495/2015
(b) Date of commission of the offence : 20.11.2006
(c) The name of the complainant : Sh.Daddan Singh S/o Sh.
Rajdev Singh, R/o H.No. 87,
Gali No.1, Sonia ViharI,
Delhi.
(d) The name of the accused, : (1) Ritu Kumar Jha S/o Sh.
parentage and residence Ram Shankar Jha, R/o
H.No.1687, Gali No.23, B
Block, IInd Pusta, Sonia Vihar,
Delhi
(2) Monu S/o Maam Chand,
R/o Gali No.1, Loni Vihar,
near DLF Chowki, PS Loni,
Ghaziabad, UP.
(3) Sonu S/o Mange Ram,
R/o H.No.B1533, Gali No.21,
Sonia Vihar, Delhi.
(4) Surender Kumar S/o Sh.
Kalu Ram, R/o H.No.B1483,
Gali No.21, Ist Pusta, Sonia
Vihar, Delhi.
(e) Charge framed : Under Section 363/34 IPC
FIR No.532/2006 State Vs. Ritu Kumar Jha & Ors. PS: Khajuri Khas Page no. 1 /14
(f) The plea of the accused : Pleaded not guilty
(g) The final order : Acquitted.
(h) The date of such order : 07.11.2022
(i) State represented by : Sh. Arun Kumar Mavi, Ld.
APP for State.
(j) Accused represented by : Ms. Shivani Chand,
Ld.counsel for accused
persons.
Challan was filed on: 31.08.2009
Final arguments were heard on: 31.10.2022
Judgment is announced on: 07.11.2022
JUDGMENT
FACTUAL BACKGROUND
1. The accused persons namely Ritu Kumar Jha, Surender Kumar @ Rinku, Sonu and Monu @ Ram Kumar here in this case were chargesheeted for the offence punishable under section 363/34 IPC.
2. Pithily put, the case of the prosecution began when DD No. 17A qua missing of one girl namely Sangeeta was received in PS Khajuri Khas. However, as the victim could not be traced, her father/ complainant namely Dadan Singh went to PS and the present FIR was registered against unknown persons. On 13.12.2006, the victim was recovered from a house in Inam Vihar near police chowki, UP. Thereafter, after recording of statement of victim, the accused persons were arrested and further investigation was taken up. After completion of investigation, the FIR No.532/2006 State Vs. Ritu Kumar Jha & Ors. PS: Khajuri Khas Page no. 2 /14 chargesheet was filed in the court for the offence u/s 363/34 IPC.
PROCEEDINGS BEFORE THE COURT
3. Pursuant to filing of the chargesheet, cognizance was taken and the accused persons were called upon to enter trial and after their appearance, the copy of the relevant documents were furnished to the accused persons. Upon hearing both sides and on perusal of the case record, the charge was framed u/s 363/34 IPC and was read over and explained to the accused persons to which accused persons pleaded not guilty and claimed to be tried.
POINT FOR DETERMINATION
4. (i) Whether accused persons kidnapped the daughter of the complainant Dadan Singh from his lawful guardianship without his consent?.
5. In order to prove the guilt of accused for the offence punishable under Section 363/34 IPC, prosecution was duty bound to fulfil the requirements of 'kidnapping' as defined under Section 361 IPC and same runs as under: "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 FIR No.532/2006 State Vs. Ritu Kumar Jha & Ors. PS: Khajuri Khas Page no. 3 /14 guardian, is said to kidnap such minor or person from lawful guardianship."
Taking or enticing away a minor out of keeping of lawful guardian is an essential ingredient of the offence of kidnapping.
6. In case of Parkash v. State of Haryana, AIR 2004, SC 277, it was held:
6. "The object of this section seems as much to protect the minor children from being seduced for improper purposes as to protect the rights and privileges of guardians having the lawful charge or custody of their minor wards. The gravamen of this offence lies in the taking or enticing of a minor under the ages specified in this section, out of the keeping of the lawful guardian without the consent of such guardian. The words "takes or entices any minor out of the keeping of the lawful guardian of such minor" in Section 361, are significant. The use of the word "Keeping" in the context connotes the idea of charge, protection, maintenance and control; further the guardian's charge and control appears to be compatible with the independence of action and movement in the minor, the guardian's protection and control of the minor being available, whenever necessity arises. On plain reading of this section the consent of the minor who is taken or enticed is wholly immaterial : it is only the guardian's consent which takes the case out of its purview. Nor is it necessary that the taking or enticing must be shown to have been by means of force or fraud. Persuasion by the accused person which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardian would be sufficient to attract the Section.
7. "In State of Haryana v. Raja Ram (1973 (1) SCC 544) English decisions were noticed by this Court for the purpose of illustrating the FIR No.532/2006 State Vs. Ritu Kumar Jha & Ors. PS: Khajuri Khas Page no. 4 /14 scope of the protection of minor children and of the sacred right of their parents and guardians to the possession of minor children under the English Law. The decisions noticed were Reg v. Job Timmins (169 English Reports 1260); Reg v.
Handley and another, (175 English Reports 890) and Reg v. Robb (176 English Reports 466). In the first case Job Timmins was convicted of an indictment framed upon 9 Geo. IV, Clause 31,Section 20 for taking an unmarried girl under sixteen out of the possession of her father, and against his will. It was observed by Erle, C. J. that the statute was passed for the protection of parents and for preventing unmarried girls from being taken out of possession of their parents against their will. Limiting the judgment to the facts of that case it was said that no deception or forwardness on the part of the girl in such cases could prevent the person taking her away from being guilty of the offence in question. The second decision is authority for the view that in order to constitute an offence under 9 Geo. IV, Clause 31, Section 20 it is sufficient if by moral force a willingness on the part of the girl to go away with the prisoner is created; but if her going away with the prisoner is entirely voluntary, no offence is committed. The last case was of a conviction under the Statute (24 and 25 Vict. Clause 100, Section 55). There inducement by previous promise or persuasion was held sufficient to bring the case within the mischief of the State. In the English Statutes the expression used was "take out of the possession" and not "out of the keeping"
as used in Section 361, I. P. C. But that expression was construed in the English decisions not to require actual manual possession. It was enough if at the time of the taking the girl continued under the care, charge and control of the parent : See Reg v. Manketelow (6 Cox Criminal Cases 143). These decisions were held to confirm the view that Section FIR No.532/2006 State Vs. Ritu Kumar Jha & Ors. PS: Khajuri Khas Page no. 5 /14 361 is designed also to protect the sacred right of the guardians with respect to their minor wards.
8. "The position was again reiterated in Thakorlal D. Vadgama v. The State of Gujarat(AIR 1973 SC 2313) wherein it was, inter alia, observed as follows :
"The expression used in Section 361, I.P.C. is "whoever takes or entices any minor". The word "takes" does not necessarily connote taking by force and it is not confined only to use of force, actual or constructive. This word merely means, "to cause to go," "to escort"
or "to get into possession". No doubt it does mean physical taking, but not necessarily by use of force or fraud. 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 content from the other. The statutory language suggests that if the minor leaves her parental home completely uninfluenced by any promise, offer or inducement emanating from the guilty party, then the latter cannot be considered to have committed the offence as defined in Section 361, I. P. C."
PROSECUTION EVIDENCE
7. In order to prove its case, prosecution examined 5 witnesses in total.
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8. PW1 Smt.Sangeeta deposed that she did not know anything about the present case. She had left the house all alone and later on came to home and then she came to know that a case has been registered. She stated that she had given statement u/s 164 CrPC in the court at the instance of the police.
At this, Ld. APP for State sought permission to crossexamine the witness as the witness resiled from her earlier statement. During cross examination, the witness deposed that she got married to accused Monu and she had two children. She denied that she had compromised the matter with accused Monu since she had married him or that accused Monu was known to her for last two years prior to the date of incident. She denied the suggestions that on 20.11.2006, accused Monu met her at about 9:00 near Bhagat Ji Mandir and she accompanied Monu at Sherpur Village, Gali No.1, and that accused Monu was residing on rent and they started residing there and there mother of Monu and younger brother Ashu were also residing and after 45 days she alongwith Monu, his mother and brother shifted to Inam Vihar Pushta, First Gali, near Police Chowki. She stated that police recovered her from the house in Inam Vihar.
During crossexamination by Ld. defence counsel, the witness stated that she was in love with the accused Monu. She stated that her parents wanted to perform her marriage with someone else against her wishes. She stated that none of the accused took her anywhere. She left her home voluntarily to visit her relative and then went to Sher Pur village. She stated that no one had kidnapped her and she left her home voluntarily without any enticement from any of the accused.
9. PW2 Sh. Daddan Singh deposed that on the date of incident, FIR No.532/2006 State Vs. Ritu Kumar Jha & Ors. PS: Khajuri Khas Page no. 7 /14 he reached home after work and found that his daughter Sangeeta was not present. He further deposed that when he found out that his daughter not at home, he searched her personally in the night and went to the PS to get the FIR registered in the morning. He informed police officials that his daughter had not returned home and a case be registered accordingly. After 10 or 12 days, police called him to the PS and informed that his daughter has been recovered vide recovery memo Ex.PW2/B. He deposed that his daughter informed her the name of accused persons but he only remember the name of accused Monu.
Ld. APP for State sought permissions to put leading questions to examine the witness as the witness did not disclose the material facts. The witness stated that the statement U/S 161 Cr.P.C. given to the police officials was correct however, the exact details were not narrated to him but his daughter had narrated the incident and name of the accused persons in the police station where he was also present. Police officials recorded his daughter's statement. He further deposed that he did not know when his daughter got married to accused Monu. He deposed that he met Monu at PS when his daughter was kidnapped. His daughter informed the police officials that he is Monu and he was also present at the PS when his daughter pointed out Monu.
During crossexamination by Ld. defence counsel, the witness stated that police officials took his signature on several papers including blank papers. He deposed that he did not know the content of the statement made by his daughter after recovery however the said document is signed by him. He stated that his daughter had married to accused Monu and has two children. He further stated that the name of accused Monu, came to be known to him after the marriage took place. He deposed that he did not know any of the other accused persons FIR No.532/2006 State Vs. Ritu Kumar Jha & Ors. PS: Khajuri Khas Page no. 8 /14 except Monu. He stated that he saw Monu only after the marriage. He stated that nothing was enquired from him after registration of FIR. He deposed that he came to know about Monu and his daughter after the marriage dated 01.02.2010.
10. PW3 Retd. SI Kashmira Singh deposed that on 22.11.2006, DD No. 17A qua missing of one girl namely Sangeeta was marked to him by the concerned SHO. Thereafter, he gave wireless messages all over India and also got published the same in print media as well as electronic media. He deposed that he tried to search her whereabouts nearby to her house but all in vain. Thereafter, father of the complainant namely Dadan Singh came to PS and got registered FIR against unknown persons. On 13.12.2006, he came to know through secret informer that missing girl is residing in Inam Vihar near police chowki, UP. On this, he along with Ct. Hans Raj, one lady constable, father of the missing girl as well as secret informer proceeded to Inam Vihar. Thereafter at some distance they found the missing girl in the area of Inam Vihar and he prepared the seizure memo of the missing girl Ex.PW2/B. Thereafter statement of victim Ex.PW1/A was recorded. He deposed that he prepared site plan Ex.PW3/A at the instance of the complainant. Thereafter the statement of Sangeeta u/s 164 Cr.P.C. Ex.PW1/C was recorded by Ld. MM. He deposed that he served notice upon the accused persons namely Ritu, Surender @ Rinku and Monu @ Ram Kumar at the instance of the complainant and after interrogation all accused were arrested vide arrest memos Ex.PW3/B to Ex.PW3/D. All accused were correctly identified by the witness.
During crossexamination by Ld. defence counsel, the witness denied that all the suggestions put to him.
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11. PW4 W/ASI Laxmi deposed that on 13.12.2006, she joined the investigation in the present case with the IO and she was present at the PS. She took the complainant namely Sangeeta to GTB Hospital to get her medical examination done. She deposed that the doctor handed over her two sealed pullanda of slides and samples alongwith MLC No. 5163/06. Thereafter, she alongwith Sangeeta and Ct. Hansraj came back to the PS and handed over MLC and sealed pullanda to the IO.
12. PW5 ASI Hansraj deposed that on 13.12.2006, he joined the investigation in the present case with the IO SI Kashmira Singh. On that day, he alongwith IO and father of the Sangeeta namely Dadan Singh went to Inam Vihar, Loni, Ghaziabad where one secret informer met with them. On the instance of secret informer, they recovered Sangeeta from there. He deposed that he alongwith Ct. Laxmi and Sangeeta went to GTB Hospital to get her medical examination conducted.
During crossexamination by Ld. defence counsel, the witness stated that no recovery of Sangeeta was effected in his presence or that he did not join the investigation.
13. After conclusion of examination of witnesses, PE was closed. Statement of accused persons was recorded in which they stated that they have been falsely implicated and chose not to lead defence evidence.
ARGUMENTS
14. I have heard the submissions from Ld. APP for State as well as counsel for accused persons and meticulously perused the record.
FIR No.532/2006 State Vs. Ritu Kumar Jha & Ors. PS: Khajuri Khas Page no. 10 /14 FINDINGS AND REASONS
15. At the outset, it is to be noted that in the present case FIR was got registered against unknown persons as identity of the accused persons was not known to the complainant. The complainant/PW2 stated in his deposition that he was not present at his house on the date of incident and when he came back, he found that his daughter/victim/PW1 was missing. The victim was got recovered on 13.12.2006 from a house in Inam Vihar at the instance of a secret informer. The ownership of the house from which the victim was recovered, was not ascertained during the investigation. As per recovery memo Ex PW2/B, the victim was found from a house in Inam Vihar Colony Loni, Uttar Pradesh near police booth lane.
16. Smt. Sangeeta/PW1 is the victim herself and she deposed that her parents wanted to perform her marriage with someone else against her wishes. She stated that none of the accused took her anywhere. She left her home voluntarily to visit her relative and then went to Sher Pur village. She stated that no one had kidnapped her and she left her home voluntarily without any enticement from any of the accused. She deposed that accused Monu @ Ram Kumar is her husband and she does not wish to state anything else.
17. PW2/ Sh. Daddan Singh had got the FIR registered against unknown persons. After the victim was got recovered, she stated in her statement u/s 161 CrPC that on 20.11.2006 she left house of her aunt in order to go to her home, and while on the way accused Monu met her and asked her to go with him to which she declined and thereafter accused Monu called on phone to Rinku, Ritu Kumar and Sonu who came at the FIR No.532/2006 State Vs. Ritu Kumar Jha & Ors. PS: Khajuri Khas Page no. 11 /14 spot and took her to the house located at Sherpur where they stayed for 45 days and after staying for 45 days at house in Sherpur, Monu took her and his mother and brother to Inam Vihar and from there she was recovered. In his deposition before the court, PW2 stated that he saw accused Monu only after the marriage and the date of marriage was 01.02.2010 i.e. four years later the date of incident. He further deposed that he did not know any other accused except Monu. From his testimony, it is revealed that he did not have any first hand knowledge and whatever he stated was based upon the information given to him and police by the victim after her recovery.
Further, the victim/PW1 in her examination before the court deposed that none of the accused took her anywhere and that she left her home voluntarily to visit her relative and then went to Sher Pur village. She stated that no one had kidnapped her and she left her home voluntarily without any enticement from any of the accused. It is settled that the statement made before the court is the substantive piece of evidence and not the previous statements i.e. statements u/s 161 CrPC or u/s 164 CrPC. The victim stated that she had given statement u/s 164 CrPC before Ld. MM at the instance of her parents and due to fear she could not state the said fact to the Ld. MM.
18. As the victim did not support the case of prosecution and the complainant had no information as to who had kidnapped his daughter, it was incumbent upon the prosecution to bring/complete the chain of circumstantial evidence to bring home the guilt of the accused persons. It is noteworthy that none of the witnesses including the recovery witnesses stated that the victim was recovered from the possession/house of the accused persons. Further, the recovery memo Ex PW 2/B, vide which the victim was recovered, does not mention either that the house, from which FIR No.532/2006 State Vs. Ritu Kumar Jha & Ors. PS: Khajuri Khas Page no. 12 /14 the victim was recovered, belonged to accused persons or whether the same was taken on rent by them or that any public witness saw them there alongwith the victim. It is also noteworthy that no public witnesses were examined during investigation despite the fact that recovery memo itself noted that victim informed that the adjacent house belonged to one Imtyaz. The IO/PW3 did not state anything in his deposition about the said person.
19. It is cardinal principle of criminal law that an accused is presumed innocent until he is held guilty by a Court of competent jurisdiction. The onus to prove the case against the accused persons lies upon the prosecution which has failed to prove its case beyond reasonable doubt.
20. It has been observed by the Hon'ble Punjab & Haryana High Court in a case of "Sadhu Singh Vs. State of Punjab 1997(3) Crime 55"
as under: "In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubt. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused."
CONCLUSION:
21. In view of the foregoing discussion and as per law discussed above, it has to be held that the prosecution could not prove the charge u/s 363/34 of IPC against accused persons beyond reasonable doubt. The FIR No.532/2006 State Vs. Ritu Kumar Jha & Ors. PS: Khajuri Khas Page no. 13 /14 prosecution could not bring on record any evidence to suggest that the accused persons had taken or enticed the victim for the purpose of kidnapping her. As the testimony of witnesses/victim does not assist prosecution and circumstantial evidences are inchoate, accused persons have to be acquitted. Accordingly, the accused persons namely Ritu Kumar Jha, Monu, Sonu and Surender Kumar are acquitted of the charge framed for the offence punishable u/s 363/34 IPC.
Now, file be consigned to Record Room.
Digitally signed by NITISH Announced in the open court NITISH Date: 2022.11.07 on 07.11.2022 15:02:52 +0530 (Nitish Kumar Sharma) Metropolitan Magistrate03, NorthEast, Karkardooma Courts, Delhi
FIR No.532/2006 State Vs. Ritu Kumar Jha & Ors. PS: Khajuri Khas Page no. 14 /14