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The State Govt Of Nct Of Delhi vs Om Prakash on 26 February, 2019

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment reserved on: 10.10.2018

% Judgment delivered on: 26.02.2019

+ CRL.A. 593/2018

THE STATE GOVT OF NCT OF DELHI ….. Appellant
Through: Ms. Kusum Dhalla, APP along with
Inspector Satish Chandra, P.S.-
Badarpur, for the State.
versus

OM PRAKASH ….. Respondent
Through: Mr. Sumer Sethi, Amicus Curiae.

CORAM:
HON’BLE MR. JUSTICE VIPIN SANGHI
HON’BLE MR. JUSTICE I. S. MEHTA

JUDGMENT

VIPIN SANGHI, J.

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.

Crl.A. No.593/2018 Page 1 of 24

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

Crl.A. No.593/2018 Page 2 of 24
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

Crl.A. No.593/2018 Page 3 of 24
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

Crl.A. No.593/2018 Page 4 of 24
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

Crl.A. No.593/2018 Page 5 of 24
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

Crl.A. No.593/2018 Page 6 of 24

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

Crl.A. No.593/2018 Page 7 of 24
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 eye-
witnesses 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

Crl.A. No.593/2018 Page 8 of 24
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

Crl.A. No.593/2018 Page 9 of 24
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 PW4 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. PW5 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

Crl.A. No.593/2018 Page 10 of 24
not deposed that the victim girl pointed towards the accused
and stated that he has brought her there.

10. The IO PW6 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
PW4 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 PW2 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

Crl.A. No.593/2018 Page 11 of 24
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.

Crl.A. No.593/2018 Page 12 of 24

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

Crl.A. No.593/2018 Page 13 of 24
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.

Crl.A. No.593/2018 Page 14 of 24

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

Crl.A. No.593/2018 Page 15 of 24
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 t-
shirt 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, PW8 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

Crl.A. No.593/2018 Page 16 of 24
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

Crl.A. No.593/2018 Page 17 of 24
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

Crl.A. No.593/2018 Page 18 of 24
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

Crl.A. No.593/2018 Page 19 of 24
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. PW1,
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

Crl.A. No.593/2018 Page 20 of 24
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 PW1 Dev Verman did not inform PW1 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 PW1,
PW2 and the other police witnesses taken note of hereinabove, and the
prosecutrix pointed towards the accused as the person who had taken her

Crl.A. No.593/2018 Page 21 of 24
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
PW1, PW2, PW4, PW5 and PW6, 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

Crl.A. No.593/2018 Page 22 of 24
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 PW2 to attend the function with her grandmother
PW1, she was in the lawful guardianship of her grandmother PW1. The
accused took away the prosecutrix out of the keeping of the lawful
guardianship of PW1 without her consent or knowledge. Pertinently, it was
not his defence that he had taken away the prosecutrix with the consent and
knowledge of PW1. 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

Crl.A. No.593/2018 Page 23 of 24
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

Crl.A. No.593/2018 Page 24 of 24

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