Full Text
JUDGMENT
THE STATE GOVT OF NCT OF DELHI ..... Appellant
Through: Ms. Kusum Dhalla, APP along with
Inspector Satish Chandra, P.S.–
Badarpur, for the State.
Through: Mr. Sumer Sethi, Amicus Curiae.
HON'BLE MR. JUSTICE I. S. MEHTA
1. The present appeal under Section 378 Cr.P.C. has been preferred by the State upon grant of leave, to assail the judgment dated 19.12.2016 passed by the learned Additional Sessions Judge – 01, South-East District in Case No.1549/2016, SC No.54/2014 arising out of FIR No.91/2014 registered at PS – Badarpur under Sections 363/354A IPC and Section 8 of the Protection of Children from Sexual Offences Act, 2012 (POCSO), acquitting the respondent/accused of the charge framed against him. 2019:DHC:1310-DB
2. The aforesaid FIR was initially registered under Section 363 IPC on 16.02.2014. After the prosecutrix/victim child was recovered, her statement was got recorded under Section 164 Cr.P.C. On the basis of that statement, Section 354A IPC and Section 8 POCSO Act were added. The charge-sheet was filed under Section 363/354A IPC & Section 8 of POCSO Act and the learned Trial Court framed the charges, vide order on charge dated 26.08.2014, under the same sections.
3. The factual matrix emerging from the record is that on 16.02.2014 the complainant Shri Omwati (PW-1) came to the police station with her relatives and gave her statement to IO/ASI Lallan Sah (PW-6), that on the preceding day, i.e. 15.02.2014, she along with her family – including her granddaughter-prosecutrix/victim child (M), aged about 5 years and grandson arrived at her brother‟s house at Mohan Baba Nagar Tajpur Pahari Badarpur, New Delhi, to attend an engagement function which was to be held on the day of the incident i.e. 16.02.2014. The complainant stated that her granddaughter was playing outside the said house at around 3.30 PM, and at 4.00 PM on the said date, she was searched for, but could not be traced. On the statement (Ex.PW-1/A) of the complainant a case under section 363 IPC was registered (EX-PW-3/A) vide FIR No. 91/2014 by ASI Brij Mohan (PW-3), who then handed over the investigation to the Investigating Officer ASI Lallan Sah and the investigation was started the same day. The IO/ASI Lallan Sah inspected the spot from where the victim went missing. The grandson of the complainant Omwati (PW-1), Dev Verman, aged 8 years disclosed that one bald uncle was the person who had taken away his sister (victim). Consequently, Ms. Omwati – the complainant and Sh. Surender Verma (PW-2) went along with the IO/ASI Lallan Sah, Ct. Pawan Kumar (PW-4), Lady Ct. Sarita (PW-5), to the residence of the accused at village Mewla Mehrajpur, District Faridabad in search of the victim on 17.02.2014 from where the search team recovered the prosecutrix/victim girl in the presence of the accused. The prosecutrix was sent for medical examination to AIIMS Hospital the very same day. Her MLC No. 1992/2014 was prepared and the accused was examined at Indraprastha Apollo Hopitals, Sarita Vihar. Thereafter, the accused was arrested vide arrest memo (Ex. PW 4/A) under section 363 IPC and prosecutrix was lodged in PRAYAS (Shelter home) in the night & was counselled the next day by a counselor, Garima of a NGO, after which the victim returned to her family. On the next date i.e. 18.02.2014, the accused was released on bail.
4. The statement of prosecutrix (PW-8) was got recorded before Sh. Pawan Kumar MM, Saket Court under section 164 Cr.P.C (Mark PW- 7/DA), wherein the prosecutrix stated that, day before, i.e. day of the incident, one uncle took her by the hand and made her sit in an auto after which she was put inside one gadda (pit) – one with no water inside. The prosecutrix further stated that the accused then inserted his tongue inside her mouth and fled from there. Sometime later, another uncle came & laid her down on the ground, covered her mouth and strangulated her throat and then ran away, after which the prosecutrix states that she went to someone‟s house. The prosecutrix further describes the first uncle/person (accused) as a little bit dark and bald. After her statement was recorded, sections 354/34 IPC, 8 of the POCSO Act were added, and the investigation was handed over to IO/SI Sarita (PW-7). The accused was re-arrested, vide arrest memo (EX. PW-6/C) on 19.02.2014 by SI Sarita (PW-7) & was got medically examined at AIIMS, Vide MLC no. (EX PW-7/B).
5. After completion of the investigation, charge sheet for the offence punishable under Section 363/354A IPC, 8 POCSO Act was filed against the accused in the Special Designated court to try the offences under Protection of Children from Sexual Offences Act, 2012.The Court framed charges under the above said sections to which the accused pleaded „not guilty‟, and claimed trial. The prosecution examined eight witnesses in all to substantiate the charge against the accused and to prove his guilt. On the other hand, the accused did not examine any witnesses in his defence, and claimed that he had been falsely implicated. As aforesaid, the Trial Court has completely acquitted the respondent accused.
6. When the Criminal Leave Petition preferred by the State came up for hearing on 01.05.2018, the learned APP pressed the same in respect of the charge framed against the accused under Section 8 of the POCSO Act, and in the alternative under Section 354A IPC. However, we were not convinced that the matter required grant of leave on the said aspect since, apart from the wavering statement of the prosecutrix, who was only about 5 years old, there was no material to conclusively establish the guilt of the accused of the said offences. Accordingly, we were inclined to dismiss the leave petition. Subsequently, while preparing the order on the same day, the Court realized that so far as the charge under Section 363 IPC is concerned, the judgment of the Trial Court required deeper consideration looking to the evidence led in respect of the said charge. Consequently, this Court passed the order dated 01.05.2018 as follows: “ The State has preferred the leave petition to seek leave to appeal against the judgment dated 19.12.2016 rendered by ASJ–01 South East District New Delhi in Case No. 1549/16, Sessions Case No. 54/2014 arising out of FIR No. 91/2014 registered at PS – Badarpur under Section 363/354A IPC and Section 8 of the Protection of Children from Sexual Offences (POCSO) Act against the respondent/ accused. The Trial Court framed the charges on 26.08.2014. The first charge was framed under Section 363 IPC. The second charge was framed under Section 8 of the POCSO Act. In the alternative, charge under Section 354A IPC was framed against the accused. As aforesaid, the Trial Court has acquitted the respondent accused of all the charges. When the leave petition was taken up for consideration on 01.05.2018, the learned APP had pressed the petition in respect of the charge framed under Section 8 of the POCSO Act and in the alternative under Section 354A IPC. Since we did not find much force in the submission of the learned APP on that aspect, we communicated to learned counsels that we are inclined to dismiss the leave petition. However, the order of dismissal was not dictated in Court with a view to save time of the Court. Subsequently, while preparing the order, we have realized that so far as the charge under Section 363 IPC is concerned, there may be a lot to be said on behalf of the prosecution, looking to the evidence brought on record. The argument advanced before us on 01.05.2018 had not focused on the said aspect. Consequently, we deem it appropriate to list the leave petition for further arguments on the aspect whether we should grant leave to appeal against the impugned judgment qua the decision insofar as it pertains to the charge under Section 363 IPC is concerned. We are guided in adopting this course of action by the decision of the Supreme Court in Kushalbhai Ratanbhai Rohit and Others Vs. State of Gujarat, (2014) 9 SCC 124. As aforesaid, the judgment/ order has still not been finally prepared. Consequently, there is no question of the same being signed by us. Accordingly, list the matter for directions on 08.05.2018. The learned APP as well as the learned counsel for the respondent be informed by the Court Master accordingly.”
7. Consequently, learned counsels were heard on 21.05.2018. We granted leave in the matter and, resultantly, the appeal came to be registered. In view of the aforesaid, the only aspect which we need to consider is whether the judgment of the Trial Court on the charge under Section 363 IPC is erroneous and calls for interference in appeal.
8. The Ld.ASJ acquitted the accused Om Prakash on the premise that, there were contradictions in the statements of the prosecution witnesses. The contradictions were with regard to pointing out of the accused at time of recovery of the victim/ prosecutrix; uncertainty of the owner of the house from where recovery was made, non-examination of witnesses present at time of recovery of victim; the victim not stating as to whether her relatives were present at the time of her recovery, and; whether she was recovered from the house of the accused or not. The Ld.ASJ also raises doubts on the case of the prosecution since the grandson of the complainant-Dev had not intimated his family about the incident at the earliest, or revealed the identity of the accused to the complainant at the relevant time of kidnapping. Submission of parties
9. The submission of the learned APP is that minor contradiction in the depositions of the prosecution witnesses has been made the basis of the respondent‟s acquittal on the charge under Section 363 IPC. He submits that the Trial Court has failed to appreciate that it was established beyond all reasonable doubt that the minor victim was indeed kidnapped by the respondent, and she was recovered while she was with him at his residence, and he was also arrested simultaneously. In this regard, the learned APP has drawn our attention to the evidence to which we shall make a reference a little later. The learned APP submits that it was sufficient to establish that the accused solicited the prosecutrix to abandon her legal guardianship, and that was sufficient to hold the accused guilty of the offence of kidnapping. In this regard, he placed reliance on Moniram Hazarika vs State of Assam, (2004) 5 SCC 120, wherein the Supreme Court observed: “It is clear from the above observation of this court that if the accused played some role at any stage by which either solicited or persuaded the minor to abandon the legal guardianship, it would be sufficient to hold such person guilty of kidnapping”
10. Learned APP submits that all the prosecution witnesses have stated, in one voice, that the minor child was recovered from the house of the accused. The accused was also identified by the victim before the Trial Court.
11. Learned APP submits that since the victim was recovered from the rented house of the accused as pointed out by all the witnesses, excepting PW 7 (who was handed over the investigation at a later stage and he was not even present when the child was recovered); and at the time of making the said recovery, the victim had pointed at the accused as the person who kidnapped her from Badarpur, it was established that the offence under Section 363 IPC had been committed by the accused. The child was only about 5 years and the accused had no authority from the natural guardian of the child to take her away. Despite this, the ASJ failed to appreciate the material evidence and find the accused guilty.
12. The APP also submits that there are no material contradictions, or improvements, or variations in the statements of witnesses. He submits that the ASJ was misdirected in his approach in over emphasizing the minor discrepancies in the prosecution‟s case. Learned APP submits that on perusal of the arrest & personal search memos, it is clear that the residence from where the child was recovered was of one Tej Singh Gujjar, and even if there was some dispute in this regard, that did not detract from the crime committed by the accused.
13. Further, according to the APP, the learned ASJ erred in disbelieving the case of the prosecution because PW-4 & PW-6 made statements that the accused was pointed out by the prosecutrix at time of recovery, while on the other hand, PW-5 did not state so. Silence of PW-5 on this aspect could not be taken as a contradiction with the statements of PWs 4 and 6. The learned APP submits that the ASJ‟s observation, as to why no witnesses, who were present at time of recovery were examined, & why the brother of the victim was not examined, is of not much consequence, as the other material eyewitnesses have deposed on the same lines as the prosecutrix. He relies on Leela Ram vs State of Haryana (2011) 7 SCC 295, wherein it was held: “there is bound to be some discrepancies between the narration of different witnesses when they speak details and unless the contradictions are of material dimension, the same, should not be used to delusion the evidence in its entirety. Instantly, the corroboration of the evidence with the mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefore should not render the evidence eyewitness unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence.”
14. Learned APP also submits that the identity of the respondent/ accused was fully established beyond reasonable doubt by the victim i.e. PW-8, who identified the respondent correctly in court and stated that the respondent was the same person who had committed the offence. The learned APP cited Ranjit Hazarika vs. State (1998) 8 SCC 653, where the Supreme Court held there is no requirement in law to insist upon corroboration of statement of the victim to base the conviction of the accused.
15. On the other hand, the submission of the learned counsel for the respondent is that the prosecution has not been able to establish the guilt of the accused in the commission of the offence as alleged. He fully supports the impugned judgment. We shall deal with his submissions as we deal with the submission of the appellants. Discussion
16. At this stage, we may extract the discussion in the impugned judgment, wherein the charge under Section 363 IPC has been considered by the Trial Court: “8. In order to prove the kidnapping the prosecution is relying upon the testimony of the victim who identified the accused as the person who took her with him and the testimony of other witnesses who deposed that the victim girl was recovered from the house of accused by the police. The victim girl deposed in the court that “I am resident of Mathura. When 1 had come to Delhi on earlier occasions one thief took me with him. At that time I was playing in the street in front of house of my Tai. He took me in a 'Gadda'. At that time I was wearing frock, T shirt and pajami and he tried to remove my Tshirt and pajami. In the gadda there was no water. He flee from there and another man came there. The second man did nothing and left the spot due to fear. I came out from the gadda and went to nearby house. Police was called and I was handed over to the police. I was taken by the police officials to the police station. When I reached to the police station my mother, bua, grandmother, my brother and son of bua were present there. No enquiries were made from me by the police. I was also brought to this court earlier but no enquiries were made from me. The thief which took me was bald and his name was Om Prakash. I came to know his name when my grandmother was calling him. He was not present in the police station when I was present there.” She identified the accused when he was shown during the testimony through video link to her that he was seen by her in the police station. She stated that he had done nothing with her except trying to remove her clothes. She was cross-examined by the learned Additional Public Prosecutor and answered the question whether Om Prakash put his tongue into her mouth on that day in affirmative. She has not deposed that the house in which she went was of the same person who brought her with him.
9. In respect of the recovery of the victim it stated by PW[4] Ct. Pawan that on 17.02.2014 he along with IO/ASI Lallan Saha, lady constable Sarita, complainant and Surender reached at village Mewla Mehrajpur, District Faridabad in search of Victim and they found the girl aged around 5/6 years in the house of Tej Singh Gujjar and that wife of Om Prakash also met them in the house. He stated that the victim pointed out towards accused Om Prakash as the person who had kidnapped her from Badarpur. PW[5] Ct. Sarita also deposed in this regard that she went to Mewla Marajpur is search of victim and she was recovered from the house of Tej Singh Gujjar. But she has not deposed that the victim girl pointed towards the accused and stated that he has brought her there.
10. The IO PW[6] SI Lallan Sah deposed that on 17.02.2014 complainant along with her relative came to police station around 11.00AM and told that accused Om Prakash has also attended the function and they suspect that accused Om Prakash had kidnapped the girl. He deposed that there after they went to Mahrajpur Faridabad where they came to know that Om Prakash is residing in the said village in the house of Rajbir and that they reached at the house of Rajbir in the said village where accused Om Prakash along with kidnapped child met them there. He deposed that after seeing her grandmother victim girl started weeping and came to her and pointed out towards accused that he had brought her in that village. As per PW[4] complainant had come to police station at around 01.00/02.00 PM. Thus as testimony of IO the house was of Rajbir.
11. As per complainant, on 17.02.2014 they came to know from her grand son that one person namely Om Prakash had kidnapped her grand daughter and she along with the police and other family members reached at the house of Om Prakash where Om Prakash met them and he was brought by the police to the police station. She deposed that thereafter, they again visited the house of Om Prakash and at the instance of Om Prakash, her grand daughter was recovered by the police. Thus as per testimony of the complainant they went to the house of accused twice. If the grandson of the complainant was knowing the name and identity of the person who took the victim with him no explanation is brought on file then why he did not tell this to the complainant on that day itself.
12. It is deposed by PW[2] Surender that he tried to trace the house of accused Om Prakash from his friends and that thereafter, he alongwith police and other family members reached at the house but he was not found at his house. No witness from the house where the girl was recovered has been examined nor the brother of the victim girl has been examined to identify the accused as the person who took the victim from the house as claimed by him and told to complainant. Neither the local police was informed or joined in the recovery proceeding by the police. These facts when considered in the light of contradictory statements of the witnesses of recovery the case of recovery becomes suspicious and doubtful.
13. The inconsistencies and contradictions observed as above sufficiently show that no such offence has occurred as deposed by the witnesses. Thus, the accused is entitled for acquittal as the charge against him is not proved. Accordingly the accused Om Prakash is acquitted from the charges framed against him.”
17. We may examine the statements of the material witnesses and the relevant evidence led by the prosecution which has a bearing on the charge under Section 363 IPC. First & foremost, we may observe that the statement of the complainant (Rukka) – on the basis of which the FIR came to be registered, shows that the same was recorded on 16.02.2014. The same is Ex.PW-1/A. The gist of the said complaint made by the complainant PW-1 is that she lives at Mathura. On the previous day, i.e. 15.02.2014, she came with her grandson Dev Verman and the prosecutrix/ victim „M‟ at Mohan Baba Nagar, Tajpur Pahari, Gali No.1, House No. A-50, Badarpur, New Delhi. On 16.02.2014, her granddaughter aged 5 years was playing with other children outside the house at about 03:30 p.m. When she looked for her at 04:00 p.m., she was nowhere to be seen. She looked for the victim but to no avail. She stated that some unknown person appears to have taken her away. On the basis of the said complaint/ Rukka, the FIR came to be registered on 16.02.2014 vide FIR No.91/2014 under Section 363 IPC at about 21:55 hrs.
18. In her testimony, PW-1 stated that on 17.02.2014, it was learnt by her and others from her grandson Dev Verman that Om Prakash the accused had kidnapped her granddaughter „M‟. She further stated that she along with the police and other family members reached the house of the accused where the accused met the said party and he was brought to the Police Station, whereafter she along with others again visited the house of the accused and, at his instance, her granddaughter was recovered by the police. She correctly identified the accused in Court and stated that, at his instance, her granddaughter „M‟ was recovered. Her cross-examination shows that she was a little unclear and confused about when she first visited the house of the accused. At one stage, she stated that on the disclosure made by Dev Verman about the identity of the kidnapper, she visited the house of the accused along with other persons and police on the night of 16.02.2014. She stated that when she visited the house of the accused, wife of the accused and his daughter met them in the evening of 16.02.2014. Her granddaughter „M‟ was not there. She also stated that “We made inquiry with the neighbours of Om Prakash who told that Om Prakash did not come to his house in the evening of 16.02.2014”. She also stated that “I do not remember whether the police had gone the house of Om Prakash in the night or not”. Thus, at one stage, she stated that she along with others and the police party went to the house of the accused in the night of 16.02.2014 and, at another stage, she stated that she did not remember whether the police had gone to the house of Om Prakash in the night or not. She denied the suggestion that on 17.02.2014, the accused Om Prakash was already present at the Police Station. She volunteered to state that he was present in his house “when we visited his house with the police”. She stated that “Next day, we visited alongwith the accused who got recovered „M‟ from where he hide baby „M‟”. In further cross-examination, she stated that she did not visit that place where „M‟ was hidden by the accused and she did not know the place from where „M‟ was recovered. She also denied the suggestion that brother-in-law of Surender, i.e. her nephew PW-2 intended to marry the daughter of Om Prakash and, for that reason, Om Prakash had been falsely implicated in the case.
19. The examination of PW-1 took place about 15 months after the date of the incident. She is an illiterate lady and is a housewife aged about 50 years. On the reading of her complete statement, while it is clear that she made the police complaint and, when she made the complaint, she was not aware where her granddaughter had gone, and with whom, she is also categorical that later on her grandson Dev Verman had disclosed that the accused had taken away „M‟ with him. She is also categorical that, thereafter, search was made to locate „M‟ at the house of the accused. There is lack of clarity whether that search was made in the evening of 16.02.2014, or it was made on 17.02.2014, or on both days.
20. We may now look at the evidence of PW-2 Surender Verma – the nephew of the complainant, at whose house PW-1 along with her grandson and granddaughter „M‟ had gone to attend the function. He stated that on 16.02.2014, there was a marriage function of his brother at his address and he had invited the accused Om Prakash to attend the marriage, since Om Prakash was working with him in the same company. He was already under the influence of liquor. He and Om Prakash had taken lunch and then, at about 03:00 p.m., without giving any intimation, Om Prakash had left. Thereafter he came to know that „M‟ was not found at the house and he and others tried to search but she could not be traced. He stated that “Later on, the brother of „M‟ namely Dev informed to her grandmother that one bald person took away „M‟ with him”. On this PW-2 called the accused. However, he did not receive a proper response. He then reached the Police Station and reported the case. He tried to trace the house of the accused Om Prakash from his friends. Thereafter, he along with police and other family members reached the house of the accused, but the accused was not found at his house. His wife met the party and she also made a complaint to the police about his behavior. On the morning of the next day, he received a telephone call from the landlord of the accused. He along with family members and the police reached the house of the accused where he was arrested, and at his instance, „M‟ was recovered from the house of the accused. He correctly identified the accused as the person who got recovered „M‟ from his house.
21. From the cross-examination of PW-2, it appears that the accused did not dispute the fact that he was invited by PW-2 to his residence for the function. Pertinently, the suggestions given to PW-2 on behalf of the accused were that the prosecutrix had gone to the house of the accused of her own free will, and that she remained in the custody of the accused and his family, and they treated the prosecutrix like their child.
22. In the statement of the prosecutrix recorded before the Ld Magistrate under section 164 Cr.P.C (Mark PW-7/DA), the victim categorically states, that she was taken by one uncle in an auto and forced inside a gadda(pit) with no water inside, where the accused put his tongue inside her mouth and then fled away, moments after which, another uncle came, who too, ran away, after covering her mouth and strangulating her neck. The prosecutrix then goes onto to state that she had gone into an unknown house after which the police came and took her. The prosecutrix went on to describe the first uncle as a bald and dark man – which matches with the description of the accused.
23. During the trial, the prosecutrix „M‟ was examined as PW-8. Her statement was recorded on 20.09.2016. The prosecutrix states in her statement that on the day of the incident she was taken by one thief in a gadda with no water, and she was wearing a frock, t-shirt and pajama. The prosecutrix went on to state that the thief tried to remove her pajami and tshirt after which he fled from the spot. Another man came who did nothing and ran away out of fear. Thereafter, police was called and she was taken to the police station where she states that her mother, bua, grandmother, brother & son of bua were present. She further describes the thief as a bald man named Om Prakash, and that she came to know the name after her grandmother was calling him. She further states that the accused was not present there in the police station when she was there and that she could identify him, if shown. The accused was shown to the prosecutrix via video link and the latter correctly identified the accused. She was then cross examined by the ld. APP with the permission of the Court. During her cross examination, PW[8] denied the suggestion that she had made her statement as told to her by her grandmother. She also denied that she had identified the accused on the asking of her grandmother. She also denied the suggestion that the accused, shown to her in Court, was not the “thief”, who took her with him.
24. PW-4 Constable Pawan Kumar stated that he was posted at Police Station Badarpur on 17.02.2014. On the said date, he along with I.O. /ASI Lallan Saha, Lady Constable Sarita, PW-1 Omwati and PW-2 Surender Verma reached at village Mewla Mehrajpur, District Faridabad in search of the victim. They found the victim in the house of Tej Singh Gujjar. The wife of the accused also met him in the said house. The prosecutrix – who was also present there, pointed out towards the accused who had kidnapped her from Badarpur. PW-4 correctly identified the accused. He stated that the accused was taken into custody. He exhibited the Arrest Memo (Ex.PW- 4/A) which bears his signatures at point „A‟. Pertinently, PW-4/A describes the place of arrest as “Residence Mewla Mehrajpur”. Apart from bearing the signatures of PW-4, it also bears the signatures of the then I.O. ASI Lallan Saha – who was also examined as PW-6. The personal search was conducted vide Ex.PW-4/B, which bears his signatures at point „A‟. Thereafter, he states that the team returned to Delhi and the accused was got medically examined, whereafter he was put behind the bars. The personal search memo (Ex.PW-4/B) also bears his signatures at point „A‟ and ASI Lallan Saha at point „B‟. PW-4 was cross-examined on behalf of the accused. He denied the suggestion that he never visited Mewla Mehrajpur.
25. Lady Constable Sarita was examined as PW-5. She corroborates the statement of PW-4 and the other witnesses that on 17.02.2014, while she was posted at PS-Badarpur, she along with I.O. /ASI Lallan Saha (PW-6), Constable Pawan (PW-4), Omwati (PW-1) and Surender (PW-2) reached Village Mewla Mehrajpur, District Faridabad in search of the victim and found the victim in the house of Tej Singh Gujjar, where the wife of the accused along with the accused also met them. The prosecutrix went into the lap of Omwati – her grandmother (PW-1) and the prosecutrix was handed over to her custody. The accused along with the prosecutrix were brought to Delhi and the prosecutrix was got medically examined. She also identified the accused present in Court.
26. Sub-Inspector Lallan Sah was examined as PW-6. He states that on 16.02.2014, while he was posted at PS-Badarpur and was on emergency duty between 08:00 p.m. to 08:00 a.m., at about 11:40 p.m. the complainant Omwati and her relatives came to the Police Station regarding the prosecutrix going missing. He recorded her statement under Section 161 Cr.P.C., i.e. Ex.PW-1/A and got the case registered. He visited the residence of PW-2 and inspected the spot. He prepared the site plan Ex.PW- 6/B, which bears his signatures at point „A‟. He states that on 17.02.2014, the complainant (PW-1) with her relatives came to the Police Station around 11:00 a.m. and informed that accused Om Prakash had also attended the function and they suspected him to have kidnapped the prosecutrix. He corroborates the statement of the other witnesses that he along with Lady Constable Sarita (PW-5), Constable Pawan (PW-4), complainant (PW-1) and her relatives went to village Mewla Mahrajpur Faridabad, where he came to know that Om Prakash is residing in the said village in the house of Rajbir. He stated that he reached the house of Rajbir, where the accused Om Prakash along with the kidnapped child met the party. The prosecutrix started crying upon seeing her grandmother and came to her and pointed out towards the accused, that he had brought her to the village. The accused was overpowered, and thereafter, they came to Police Station. He stated that the accused was arrested at village Mewla Mahrajpur, Faridabad vide Arrest Memo Ex.PW-4/A, which bears his signature at point „B‟. He also exhibited the Personal Search Memo (Ex.PW-4/B), which bears his signatures at point „B‟. He also talks about the prosecutrix being sent for medical examination at AIIMS and thereafter lodged at PRAYAS (Shelter Home) in the night. He stated that on the next day, i.e. 18.02.2014, the landlord of the accused Rajbir came to the Police Station and stood surety for the accused, who was then released on bail. He further deposed about the re-arrest of the accused on 19.02.2014 after addition of Section 354 IPC and Section 8 POCSO Act to the FIR in the light of the statement of the prosecutrix recorded under Section 164 Cr.P.C.
27. From the cross-examination of PW-6, it is evident that when the police party went to look for the prosecutrix at the house of the accused on 17.02.2014, the requisite entries were not logged and the statements were not recorded at the place from where the child was recovered. We may observe that the prosecution also examined SI Sarita (PW-7), (who is different from Lady Constable Sarita – who was examined as PW-5). The testimony of PW-7 was relevant only qua the charge under Section 354 IPC and Section 8 POCSO Act. PW-7 had no role to play insofar as the recovery of the prosecutrix from the house of Tej Singh in Village Mewla Mahrajpur is concerned, since she was not the I.O. at that point of time and had not participated in the recovery/ first arrest proceedings. The investigation was transferred to her only after the addition of the offence under Section 354 IPC and Section 8 POCSO Act. Therefore, her evidence is of no relevance on the said aspect. Unfortunately, the learned ASJ has got confused in the matter when he reads a contradiction into the statement of SI Sarita (PW-7) with the statements of the other witnesses. Whereas SI Sarita stated that Tej Singh was not present when she arrested the accused vide Ex.PW-6/C (the second arrest), other witnesses consistently stated that Tej Singh was present. What has been missed out is the fact that Tej Singh was present at the time of the first arrest – when the child was recovered, and even if the statement of PW-7 is taken as correct, that Tej Singh was not present at the time of the second arrest on 19.02.2014, the same has no bearing on the statements of the other prosecution witnesses in relation to the arrest of the accused on 17.02.2014.
28. It is well-settled that the failure of the investigating agencies in carrying out proper investigation cannot be a reason to reject the case of the prosecution, if there is sufficient independent evidence available to support the case of the prosecution. Thus, merely because the police did not involve the local police of Faridabad in the recovery proceedings, and statement of no local witness was recorded, the said omissions on the part of the investigating agency could not have been made a ground for doubting the case of the prosecution, if independent and credible evidence was available to find the accused guilty. In the present case, all the witnesses, i.e. PW[1], PW-2, PW-4 and PW-5 consistently stated with regard to recovery of the child from village Mewla Mahrajpur, Faridabad, i.e. from the house of Tej Singh, who was the landlord of the accused, in the presence of the accused and that the prosecutrix pointed towards the accused as the “thief”. Merely because PW-6 names Rajbir as the person from whose house the prosecutrix/ victim was recovered from the custody of the accused, and not Tej Singh, is neither here nor there. The statement of the I.O. was recorded on 18.07.2016, i.e. nearly 2½ years after the date of the incident. Therefore, there may have been failure of recollection on his part. Pertinently, Rajbir stood surety for the release of the accused on bail on 18.02.2014. Thus, it is evident that the contradiction in the statement of PW-6 with regard to the identity of the landlord of the accused, with the statement of the other prosecution witnesses is immaterial and not of much significance. Pertinently, there was no cross-examination on behalf of the accused of either PW-4 or PW-5 with regard to the name and identity of the landlord of the accused, even though both of them stated that the child was recovered from the house of Tej Singh Gurjar, inter alia, in the presence of the accused and his wife.
29. The approach of the Ld. ASJ in doubting the case of the prosecution, because the grandson of PW[1] Dev Verman did not inform PW[1] at the earliest that the accused had kidnapped the prosecutrix is fallacious. It has come in evidence that the grandson Dev Verman was only about 8 years of age. A child that young may not even have comprehended as to what had transpired. It could well be that he was so shell shocked on his younger sister going missing, that he could not speak up and name the accused as the person, who had taken away his younger sister. In any event, the said aspect does not detract from the fact that the prosecutrix was, indeed, recovered from the rented accommodation of the accused, in the presence of PW[1], PW[2] and the other police witnesses taken note of hereinabove, and the prosecutrix pointed towards the accused as the person who had taken her away. Pertinently, the accused was arrested from his own house at the time when the prosecutrix was recovered on 17.02.2014.
30. From the statements of the victim, given under section 164 Cr.P.C and her testimony recorded before the Court, it is clear that in all material respects the same are entirely consistent, natural and believable, at least to the extent of her kidnapping. The consistent version given by the victim in both the statements are that, on the day of the incident one dark and bald man had taken her away and that the said man took her to a pit with no water.
31. The statement of the prosecutrix is corroborated by the testimonies of PW[1], PW[2], PW[4], PW[5] and PW[6], as well as by the arrest memo and the personal search memo of the accused Ex.PW4/A and Ex.PW4/B respectively.
32. Thus, it stands proved beyond any shadow of doubt that the prosecutrix was recovered from the rented house of the accused at Mewla, Maharajpur, Faridabad on 17.02.2014, in the presence of the accused and that the prosecutrix had contemporaneously pointed her finger towards the accused as the person who took her. The accused was identified by the prosecutrix, as well as by the other prosecution witnesses aforesaid, as her “thief”.
33. Kidnapping from lawful guardianship is defined in Section 361 IPC as follows: “361. 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” Explanation– The words “lawful guardian” in this section include any person lawfully entrusted with the care or custody of such minor or other person. Exception– This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to lawful custody of such child, unless such act is committed for an immoral or unlawful purpose”
34. It was not the defence of the accused that he was a lawful guardian of the prosecutrix, or that he was lawfully entrusted with the care and custody of the prosecutrix. It was not even his defence that, in good faith, he believed that he was the father of the prosecutrix or that the prosecutrix was her illegitimate child. The prosecutrix was barely 5 years old. When she was visiting the house of PW[2] to attend the function with her grandmother PW[1], she was in the lawful guardianship of her grandmother PW[1]. The accused took away the prosecutrix out of the keeping of the lawful guardianship of PW[1] without her consent or knowledge. Pertinently, it was not his defence that he had taken away the prosecutrix with the consent and knowledge of PW[1]. Thus, it is evident that the accused committed the offence of kidnapping of the prosecutrix from her lawful guardianship.
35. For all the aforesaid reasons, we are of the considered view that the impugned judgment cannot be sustained, since it is patently laconic. The impugned judgment suffers from lack of proper appreciation of evidence, and on account of misdirection in law. Accordingly, we set aside the impugned judgment and convict the respondent/ accused of the offence under Section 363 IPC.
36. Considering the issue as to whether the crime of kidnapping under section 363 of IPC had been committed, we are of the settled view that the accused respondent is guilty of committing such as arising from the factual record and reasons cited above.
(VIPIN SANGHI) JUDGE (I. S. MEHTA)
JUDGE FEBRUARY 26, 2019