State vs Kailash & Ors//Fir No.13/07 on 28 January, 2013
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IN THE COURT OF SH. SANJEEV KUMAR
ADDL. SESSIONS JUDGEI(OUTER): ROHINI COURTS: DELHI
SC No.70/07.
FIR NO.13/07.
PSSULTANPURI.
U/S.363/368 IPC.
STATE
VS
1. AJAY @ LALLA @ CHHOTEY S/O. CHANDER PAL
R/O. JHUGGI NO.C81/25, DEV NAGAR,
KAROL BAGH, DELHI.
ORDER ON SENTENCE
28.01.2013.
Present: Shri A.K. Gupta, ld. Addl. PP for the State.
Convict Ajay @ Lalla @ Chhotu is on bail.
1. Vide separate judgment dated 11.01.2013, convict Ajay
@ Lalla @ Chhotu convicted for offence punishable u/s. 363/368
IPC.
2. Ld. Addl. PP for the State submits that convict has
kidnapped a young girl and thereafter concealed her in a house,
therefore, maximum punishment provided under the statute be
STATE VS KAILASH & ORS//FIR NO.13/07
PSSULTANPURI//U/S. 363/366/369/506/120B/34 IPC.
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provided to him.
3. It is stated by the mother of the convict Ajay @ Lalla that,
convict is aged about 25 years. He is not a previous convict in any
other case. She further submits that at the time of offence convict
was just 18 years of age. She also submitted that, convict has burnt
more than 80% from stove while cooking food. She has also placed
on record the photographs of the convict and the medical documents
of RML Hospital. Therefore, lenient view may be taken against him.
4. I have heard the rival submissions.
5. The object of sentencing is to see that crime does not go
unpunished and the victim of the crime and society feel satisfied that
justice has been done, but at that same time it is also duty of the
Court to see that punishment is not harsh that it defeats its purpose.
The object of the punishment is also to rehabilitate the convict in
society if possible. In this case all the convicts are young persons of
less than 30 years of age. In the case of State of Punjab vs Prem
Sagar & Others (2008) 7 SCC 550, it was observed that, "the
judicial system has not been able to develop legal principle as
regards as the sentencing. It was further observed the court while
awarding sentence would take recourse to the principle of
STATE VS KAILASH & ORS//FIR NO.13/07
PSSULTANPURI//U/S. 363/366/369/506/120B/34 IPC.
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deterrence or reform or invoke doctrine for proportionality would
depend upon the circumstances of each case and while doing so,
nature of offence stood to have been committed by the accused play
an important role. A wide discussion conferred on the court but said
discussion was exercised while sentencing the accused. It would
depend upon the circumstances in which the crime has been
committed and mental status and age of the accused is also
relevant".
6. The maximum sentence provided for offence punishable
u/s. 363 IPC is seven years and in offence punishable u/s. 368 IPC
is also same as that of main offence. In this case, the convict person
remained in JC for about 50 days i.e. w.e.f. 03.06.2007 to
24.07.2007. Further conviction slip shows that accused was 20 years
of age when he was arrested. I have also perused the medical
documents of the convict and also seen him. Convict is badly burnt.
His condition is very serious, hence, no purpose would be served by
sending him behind bar. Therefore, taking all the circumstances into
account, I sentence the convict for the period already undergone for
the both the offences i.e. u/s. 363/368 IPC.
STATE VS KAILASH & ORS//FIR NO.13/07
PSSULTANPURI//U/S. 363/366/369/506/120B/34 IPC.
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7. File be consigned to record room.
Announced in the open court (SANJEEV KUMAR)
On 28.01.2013 Addl. Sessions Judge
Rohini Courts: Delhi.
STATE VS KAILASH & ORS//FIR NO.13/07
PSSULTANPURI//U/S. 363/366/369/506/120B/34 IPC.
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IN THE COURT OF SH. SANJEEV KUMAR
ADDL. SESSIONS JUDGEI(OUTER): ROHINI COURTS: DELHI
SC No.70/07.
FIR NO.13/07.
PSSULTANPURI.
U/S.363/366/368/506/120B/34 IPC.
STATE
VS
1. KAILASH S/O. SHRI LALA RAM
R/O. A59, MEETHA PANI,
AGAR NAGAR, PREM NAGARIII,
NEAR MACHHALI TALAB, DELHI.
2. AJAY @ LALLA @ CHHOTEY S/O. CHANDER PAL
R/O. JHUGGI NO.C81/25, DEV NAGAR,
KAROL BAGH, DELHI.
3. GEETA D/O. MURLIDHAR
R/O. A57, VRIJ VIHAR, UTTAM NAGAR,
PREM NAGARIII, DELHI.
STATE VS KAILASH & ORS//FIR NO.13/07
PSSULTANPURI//U/S. 363/366/369/506/120B/34 IPC.
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Date of Institution in this Court :24.05.2007
Date of Arguments:18.12.2012
Date of Judgment :11.01.2013
JUDGMENT:1. Brief facts of the prosecution are that on 01.01.2007 Laxman Prasad came to the PS Sultanpuri and gave his statement that his eldest daughter P (name of the prosecutrix withheld), aged about 16 years had gone to Som Bazaar to purchase vegetables at about 4pm with her cousin sister Ranjan and Geeta. At about 6pm both her cousin returned to his home and told that his daughter had been kidnapped by Ajay @ Lalla @ Chhotey. He further stated that he has suspicion that his neighbour Kailash is also involved in the kidnapping of his daughter. ASI Krishan Kumar recorded the statement of Laxman Prasad and prepared rukka and on the basis of said statement got registered the FIR No.13/07 through Duty Officer in PSSultanpuri, u/s. 363/34 IPC.
On 02.01.2007 in the evening 'P' alongwith some known person came to the police chowki alongwith some known persons and SI Krishan Kumar recorded her statement u/s. 161 Cr.P.C and also produced her before ld. MM and who got her statement STATE VS KAILASH & ORS//FIR NO.13/07 PSSULTANPURI//U/S. 363/366/369/506/120B/34 IPC.
recorded u/s. 164 Cr.PC. In her statement u/s. 164 Cr.P.C. 'P' stated that, on 01.01.2007 at about 34pm, accused Geeta came to her house and asked her to accompany her to Som Bazaar for purchasing some articles. She alongwith her cousin Ranjan accompanied her to Som Bazaar and when after purchasing vegetables, she was returning, accused Geeta brought her there through some unknown way. In the meanwhile Geeta made a telephone call to someone from a local STD booth and after some time, she had seen Lalla and Kailash coming from the opposite side and Lalla caught hold her hand and put one pistol on her stomach and accused taken out one knife and both asked her not to raise alarm and threatened her that, if she will raise alarm, they will kill her parents. Thereafter, Geeta went from there saying that, 'she has finished her work', when her cousin sister Ranjana started weeping. She asked her sister to go to the house and bring her parents. After sometime, accused Kailash also left away. Lalla took her to some unknown place where he was kept for night and at about 4am on next day, Lalla brought one three wheeler and took her to his uncle's house. She did not raise alarm there due to fear. At his uncle's house Murli, Dwarka, Bhagwan Dass, Pushpa and her husband also STATE VS KAILASH & ORS//FIR NO.13/07 PSSULTANPURI//U/S. 363/366/369/506/120B/34 IPC.
came there and asked prosecutrix to give her consent to marry with Ajay @ Lalla and she under the threat gave the consent and asked them to take her father's house, but they refused and asked that first they will take her to a lawyer and thereafter one out of those persons took her to his lawyer's house. The lawyer had asked her whether she wants to marry and lawyer have to take her to police chowki before her marriage. Thereafter her parents met her and police recorded her statement.
2. On the basis of said statement, IO added the Section 366/506/120B/34 IPC. On 17.3.2007 accused Kailash and Geeta were arrested in this case. IO filed the challan against both of them in aforesaid sections. Whereas other accused i.e. Ajay @ Lalla could not be arrested.
3. On 03.06.07 Accused Ajay @ Lalla was also arrested and supplementary challan qua him also filed in the court under the aforesaid sections and he was also put to trial.
4. After compliance of the provisions of Section 207 Code of Criminal Procedure, Ld. MM committed the case to the Court of Sessions. Thereafter, it was assigned to this court.
5. Vide order dated 13.03.2008, charge under Section STATE VS KAILASH & ORS//FIR NO.13/07 PSSULTANPURI//U/S. 363/366/369/506/120B/34 IPC.
120B IPC, 506 IPC read with 120B IPC, 363 IPC read with 120B IPC, 366 read with 120B IPC and 368 IPC read with 120B IPC were framed against accused persons, to which they pleaded not guilty and claimed trial.
6. In order to prove its case, prosecution examined 13 witnesses. PW1 is HC Mahavir is the duty officer, who registered the FIR and proved the same as Ex.PW1/A, PW2 WCT Rajbala who took the prosecutrix to SGM Hospital for her medical examination, PW3 is prosecutrix, PW4 Smt. Geeta, mother of the prosecutrix, PW5 Laxman Prasad is the father of the prosecutrix, PW6 Muni Ram, Principal of M.C. Primary School, Dev Nagar, Karol Bagh, New Delhi, who had proved the date of birth certificate of prosecutrix, PW7 is Shri Manoj Kumar, Senior Civil Judgecum Rent Controller, Patiala House Courts, New Delhi, PW8 Dr. Samir Pandit, PW9 is Smt. Ranjan, PW10 HC Ashok Kumar who got registered the FIR at PS and returned back alongwith original rukka and copy of FIR, PW11 Ct. Ratti Bhan accompanied with the IO during investigation of this case, PW12 is WHC Rajesh AND PW13 is SI Krishan Kumar is the IO of the case.
7. Besides this prosecution proved documents i.e. School STATE VS KAILASH & ORS//FIR NO.13/07 PSSULTANPURI//U/S. 363/366/369/506/120B/34 IPC.
admission register as Ex.PW6/A and admission form as Ex.PW6/B, school leaving certificate as Ex.PW6/F and the photocopy of declaration of Laxman Prasad attached with admission form as Ex.PW6/C, photocopy of affidavit of Laxman Prasad as Ex.PW6/D, Statement/complaint made by Laxman Prasad as Ex.PW5/A, copy of FIR as Ex.PW1/A, MLC of the prosecutrix as Ex.PW8/A, disclosure statement of accused Kailash as Ex.PW13/D, seizure memo of exhibits as Ex.PW2/A, Arrest memo of accused Kailash as Ex.PW5/B, personal search memo of accused Kailash as Ex.PW5/C, Arrest memo and personal search memos of accused Ajay @ Lalla as Ex.PW5/D and Ex.PW5/E, Pointing out memo of spot as Ex.PW11/B, disclosure statement of accused Ajay as Ex.PW11/A, Arrest memo and personal search of accused Geeta as Ex.PW12/A and Ex.PW12/B, disclosure statement of accused Geeta as Ex.PW12/C.
8. Statement of accused persons u/s. 313 Cr.P.C. was recorded, in which all the incriminating evidence put to them, to which they denied the same and pleaded their innocence and consented for defence evidence. In his defence accused Ajay @ Lalla had examined himself as DW1, Smt. Nirmala as DW2 and STATE VS KAILASH & ORS//FIR NO.13/07 PSSULTANPURI//U/S. 363/366/369/506/120B/34 IPC.
Rajeshwar Prasad as DW3.
9. Arguments were heard from Shri S.C. Sroai, ld. Addl. PP for the State and Shri Chander Mohan ld. Counsel for accused Ajay @ Lalla and Shri A.P. Singh, ld. Counsel for accused persons Kailash and Geeta.
10. The prime witnesses of the prosecution case is the prosecutrix i.e. PW3 & PW9 Ranjan. PW3 had deposed in her testimony that on 01.01.2007, her neighbourer Geeta came to her house at about 3/4pm to call her. She alongwith her cousin Ranjan and Geeta went to Som Bazar for purchasing vegetables and other household articles. Her neighbourer Geeta instructed her to stay there and she will come back after some time. After sometime Geeta came back and prosecutrix made inquiries from Geeta where she had gone but she had not disclosed about the same. Geeta took them to a lonely passage. She saw two persons coming from their opposite side and she correctly identified them as accused persons Ajay @ Lalla and Kailash. She further stated that both the accused persons came near to them and accused Lalla took out a pistol and pointed the same on her stomach. Accused Kailash took out a knife and threatened her that, if she raised alarm then, he would kill her. STATE VS KAILASH & ORS//FIR NO.13/07 PSSULTANPURI//U/S. 363/366/369/506/120B/34 IPC.
Geeta uttered the words, 'mera kkaam ho gaya mein ja rahi hoon'. Thereafter she left the spot leaving behind of her and her cousin sister and both the accused persons Kailash and Ajay @ Lalla. Thereafter her cousin sister Ranjan started weeping and and requested the accused to leave the hand of the prosecutrix. She also started weeping. Thereafter PW3 had requested her cousin sister Ranjan to go to house and inform her parents about the happening with them and to bring them. Her cousin sister had left the spot. Accused Kailash instructed accused Ajay @ Lalla to take her and he took her to a lonely place inside a boundary wall and where she was kept till 4am. Thereafter Accused Ajay @ Lalla hired a TSR and took her to one residential house in a locality. She came to know that the said house belonged to uncle of the accused Ajay @ Lalla and after 23 hours six persons came at the said house, whose names are Murli, Purshottam, Pushpa,l Husband of Pushpa and Bhagwan Dass. All of them put pressure on her to marry with accused Ajay @ Lalla and due to fear she agreed to marry with accused Ajay @ Lalla. Accused Ajay Lalla and those person took her to the house of some Advocate in a Maruti Van, where said Advocate made inquiries from Ajay @ Lalla and when Advocate asked her about her STATE VS KAILASH & ORS//FIR NO.13/07 PSSULTANPURI//U/S. 363/366/369/506/120B/34 IPC.
willingness she refused, thereafter, said Advocate requested accused persons Ajay @ Lalla and those six persons to produce her before police officials at police post. She was taken to the police post and where Murli, Pushpa and husband of Pushpa took her inside the police post, when she was produced before the police officials she saw her parents were sitting with the said police officials. Her statement was recorded by the police officials. She further stated th th that she had passed 10 class from an open school and passed 8 class from a Government school, but she does not remember her date of birth.
She was cross examined at length by ld. Defence counsels. In her cross examination by ld. Counsel for accused Ajay @ Lalla, she admitted that photograph mark A which was never snapped in her presence and in the said photographs at point X her picture and at point Y there is picture of accused Ajay @ Lalla. She was shown writing on Mark B and she stated that the said letter was not written by her. She denied the suggestion that she had fallen in love with accused Ajay @ Lalla or that she wanted to marry with him and she was moving around with another boys and due to which accused Ajay @ Lalla had refused to marry with her. She had further STATE VS KAILASH & ORS//FIR NO.13/07 PSSULTANPURI//U/S. 363/366/369/506/120B/34 IPC.
stated that she told to the IO that accused Geeta had come to her house to call her. She confronted with her statement Ex.PW3/DX1 where it was not so recorded. She was also confronted with her statement that where it was not recorded that Geeta told her to stay there and she will come back after sometime or that when Geeta came back, she asked from her, where Geeta had gone but Geeta did not disclose anything. She was also confronted with her statement u.s, 161 Cr.P.C. Ex.PW3/DX1 that accused Ajay @ Lalla pointed out pistol on her stomach and accused Kailash took out a knife and when accused Kailash threatened her, she started weeping. She admitted that she did not make complaint to uncle of accused Ajay @ Lalla that accused Ajay had kidnapped her. She denied the suggestion that she was not taken to the house of any Advocate. She was confronted with her statement regarding the fact the Murli, Pushpa, husband of Pushpa and Bhagwan Dass took her to the PS, where it was not so recorded. She was also confronted with her statement that Murli, Pushpa, husband of Pushpa, Bhagwan Dass and her parents in the PS and thereafter they ran away as the same was not recorded in her statement Ex.PW3/DX1. She denied the suggestion that she was more than 18 years of age. STATE VS KAILASH & ORS//FIR NO.13/07 PSSULTANPURI//U/S. 363/366/369/506/120B/34 IPC.
In her cross examination by ld. Defence counsel for the accused Geeta, she stated that Ranjan is daughter of her maternal uncle (mama), who was residing in Anand Parbat, whereas Som Bazar is situated at Nangloi. She stated that accused Ajay @ Lalla and Kailash used to purchase articles from her shop and sometimes she also used to sit at that shop. She further stated that she cannot tell the exact period from which period she knew the accused persons Ajay @ Lalla and Kailash.
In her cross examination by ld. Defence counsel for accused Kailash she denied the suggestion that she took the name of accused Kailash as he was the friend of accused Ajay @ Lalla.
11. PW9 Smt. Ranjan had deposed in her testimony that earlier she was residing at Dev Nagar, Karol Bagh, New Delhi. On 01.11.2007, she went to the house of her bua Geeta at Prem Nagar. Prosecutrix is the daughtger of Geeta. She alongwith accused, Geeta and 'P' went to market to purchase vegetables and Geeta made a call from the market and when they were returning back accused Ajay @ Lalla caught hold the prosecutrix and took her away forcefully. She narrated the incident to her bua. In her cross examination she stated that police police persons came to her before STATE VS KAILASH & ORS//FIR NO.13/07 PSSULTANPURI//U/S. 363/366/369/506/120B/34 IPC.
09.01.2007 when her statement was recorded. She denied the suggestion that accused Ajay @ Lalla did not meet her in the market or that they took away her forcefully.
12. PW4 Smt. Geeta is the mother of the prosecutrix. She deposed in her testimony that on 01.01.2007 accused Geeta came to their house 23 occasions to call her daughter/ prosecutrix and on rd two occasions, she refused to go, but on 3 occasion her daughter accompanied accused Geeta when her daughter Ranjan at about 3pm and Ranjan came back at the house and she was weeping at that time. She told her that one boy by the name of Ajay @ Lalla had caught hold of hand of 'P' and he had not let off 'P'. She alongwith her husband rushed to that place but her daughter and accused Ajay @ Lalla were not found present there. They tried to trace out P, but she was not traceable. They came back at their house. On 02.01.2007, a message was received from police post, she alongwith her husband went to police post. When they were present at the police post, after sometime, her daughter P came at Police post alongwith Murli, Pushpa and husband of Pushpa.
In her cross examination by ld. Counsel for accused Ajay @ Lalla she stated that her statement was recorded in the SGM STATE VS KAILASH & ORS//FIR NO.13/07 PSSULTANPURI//U/S. 363/366/369/506/120B/34 IPC.
Hospital and her daughter knew accused Ajay @ Lalla as accused Ajay was residing in the same locality, however, she denied the suggestion that her daughter had love affairs with accused Ajay @ Lalla. She further admitted that her marriage was solemnized 2021 years back and her daughter was born after 23 years of her marriage. She denied the suggestion that her daughter was of 18 years at the time of incident. She again said that her daughter was aged about 16 years. Accused Geeta was her distant relative as she is the daughter of her distant sister. She further stated that Ranjan accompanied her daughter and she came back at 34pm and told that accused caught hold hand of her daughter, she was confronted with statement Ex.PW4/A, where the said fact was not recorded.
13. PW5 Laxman Prasad is the father of the prosecutrix as well as complainant of this case. He also deposed that on 01.01.2007 at 2pm when he was present at his house one girl came to their house and asked his daughter to accompany her to purchase vegetables and Geeta came 23 times for this purpose. She refused twice and thrice. But when Geeta came again and then his wife permitted prosecutrix to accompany Geeta. His wife had also sent girl Ranjan with prosecutrix and Geeta. At about 6/6.30pm, at first STATE VS KAILASH & ORS//FIR NO.13/07 PSSULTANPURI//U/S. 363/366/369/506/120B/34 IPC.
Geeta returned back and came to his house, but prosecutrix and Ranjan were not with her when they inquired about prosecutrix and Ranjan from Geeta then she kept mum and did not answer anything and without stating anything she went to her house. After sometime, Ranjan came to his house and prosecutrix was not with her and when they inquired from Ranjan about Prosecutrix then Ranjan told them that in the market Accused Lalla had caught hold of the hand of P and dragged her and accused Kailash was also with him. He further asked Ranjan whey she had not brought P with her, then she replied that she was frightened with the act of accused Lalla and Kailash so she returned back. Thereafter they went to Som Bazar for search of P. Thereafter they went to the PP Prem Nagar where complaint Ex.PW5/A was made. On the next day i.e. 02.01.2007 he alongwith his wife Geeta present in the PS, but his daughter was not present but she had come at about 11pm. He again stated that his daughter came on 02.01.2007 at about 11pm, when they were sitting outside the chowki. Then father of the Geeta, Murlidhar, brother in law of accused Kailash and his sister were coming with P in the police chowki. His wife snatched his daughter from father of Geeta and thereafter entered in the police chowki and thereafter IO STATE VS KAILASH & ORS//FIR NO.13/07 PSSULTANPURI//U/S. 363/366/369/506/120B/34 IPC.
recorded statement of his daughter. He further deposed that on 17.3.2007 he came to know that accused Kailash had come to his house and police arrested him near the rehri of Chholey Bhature in the Karol Bagh at his instance.
In his cross examination by ld. Counsel for accused Ajay @ Lalla he stated that he does not remember the year of marriage and again said he was married i n the year 1988. His daughter was born after 12 years of his marriage. He admitted the suggestion that accused Ajay @ Lalla and Kailash were residing in the same locality and were known to him. He denied the suggestion that his daughter was called by the name of Bhanu. He also stated that he cannot say the letter Mark B is in the handwriting of his daughter or not. He denied the suggestion that his daughter also used to roam with other boys. He denied the suggestion that both Geeta and Ranjan told him about taking away of accused Ajay @ Lalla. He further stated that he stated to the police on 02.01.2007 when they were sitting outside the chowki and his sister were coming there by hold the hands his sister. Then his wife snatched hands of prosecutrix. Confronted with the statement where it was not so recorded. He admitted the suggestion on 03.01.2007 he gone to the court for her recording statement u/s. STATE VS KAILASH & ORS//FIR NO.13/07 PSSULTANPURI//U/S. 363/366/369/506/120B/34 IPC.
164 Cr.P.C., but he admitted that he did not enter inside the court.
14. The other important witness is PW6 Shri Muni Ram, Principal of the PM Primary School and who had proved the school admission record of the prosecutrix Ex.PW6/A, B, C & D. As per the said record of date of birth of the prosecutrix was 09.05.1989. in his cross examination he admitted that he had not seen Bimla Kumari signing the school leaving certificate. He also admitted the suggestion that date of birth has intimated by the parents at the time of admission of child is recorded in the relevant school record without any verification.
15. On the other hand, accused persons examined three witnesses in their defence. DW1 is Ajay @ Lalla who is accused himself and deposed that he knew prosecutrix prior to this case, as father of the prosecutrix was having a Kiryana shop. He was living in their neighbourhood. He used to purchase goods from the said shop. He had love affairs with the prosecutrix. Their relationship continued for a quite long time. They had joint photographs. Prosecutrix had also written love letters to him, same is Ex.DW1/1. He had seen four/five boys with her and thereafter he told her that, he does not want to continue his relationship with her. Father of the prosecutrix STATE VS KAILASH & ORS//FIR NO.13/07 PSSULTANPURI//U/S. 363/366/369/506/120B/34 IPC.
had told him to marry prosecutrix, but, he refused his proposal and therefore, he was falsely implicated in this case.
In his cross examination by ld. Addl. PP for the State he stated that, he has been knowing the 'P' for the last about ten years prior to the present case/incident. He was having love affairs with prosecutrix about five/six months prior to this incident. The photograph Ex.PW5/DX was clicked at Dev Nagar, Karol Bagh, New Delhi. He does not know the name of the shop/studio from where the said photograph was clicked. He was not having the negative of the said photograph. He knew the accused Geeta for the last about two/three months prior to this incident. He knew the accused Kailash for the last about five/six months prior to this incident. He admitted that police has arrested him. He further admitted that arrest memo Ex.PW5/D, personal search memo Ex.PW5/E, pointing out memo Ex.PW11/B and disclosure statement Ex.PW11/A, bears his signatures at point C respectively. He does not know any Murli, Purushottam, Pushpa and Bhagwan Dass. He denied the suggestion that Murli, Purushottam, Pushpa and Bhagwan Dass are his relatives or that on or before 01.01 2007 he alongwith coaccused Kailash and Geeta had hatched a conspiracy to kidnap prosecutrix with STATE VS KAILASH & ORS//FIR NO.13/07 PSSULTANPURI//U/S. 363/366/369/506/120B/34 IPC.
intent that she may be compelled to marry with him and thereafter in pursuance of the said conspiracy on 01.01.2007 he alongwith his co accused persons Kailash and Geeta had kidnapped 'P' from Som Bazar, Prem NagarIII on the pointing out of pistol and knife. He further denied the suggestion that he took 'P' to a lonely place inside a boundary wall and where he kept confined 'P' till 4am and from there he took her to the house of his uncle, where Murli, Purushottam, Pushpa, husband of Pushpa and Bhagwan were present and there he alongwith them pressurized 'P' to marry with him. He further denied the suggestion that he alongwith abovesaid persons took 'P' to the house of some Advocate in a Maruti Van to get arrange his marriage with P. He further denied the suggestion that prosecutrix had not written him any letter Ex.PW1/1 and this a fabricated document. He has not made any complaint against prosecutrix and her father to falsely implicate him. He further denied the suggestion that on that day he was deposing falsely to save himself and levelling false allegations against 'P' and her father.
16. DW2 Smt. Nirmala had stated that she was the neighbourer of accused Geeta. Geeta and prosecutrix were friends. They had quarrel and P threatened her that, she will teach her a STATE VS KAILASH & ORS//FIR NO.13/07 PSSULTANPURI//U/S. 363/366/369/506/120B/34 IPC.
lesson. Thereafter, prosecutrix had gone somewhere and later on prosecutrix falsely implicated accused Geeta in this case.
In her cross examination by ld. Addl. PP, she admitted that he was not a summoned witness. She knew accused Geeta for the last about 810 years and she was having visiting terms with accused Geeta. She had not made any complaint to the police or to the court that, accused Geeta has been falsely implicated in the present case. She denied the suggestion that no quarrel had taken place between her and Geeta or that prosecutrix had not threatened accused Geeta to teach her a lesson or that she was deposing falsely to save the accused Geeta as she was having good relations with accused Geeta.
17. DW3 Shri Rajeshwar Prasad had stated that he knew accused Kailash and he is a good boy and DW3 is residing in the neighbourhood and knowing him for quite some time. He was having friendship with accused Ajay and later on some altercation took place between Ajay and Kailash. Accused Kailash has been falsely implicated in the present case, as there was some altercation between Ajay and Kailash.
In his cross examination by ld. Addl. PP he admitted that STATE VS KAILASH & ORS//FIR NO.13/07 PSSULTANPURI//U/S. 363/366/369/506/120B/34 IPC.
he was not a summoned witness. He has not made any complaint to the police or to any court that accused Kailash has been falsely implicated in this case. He denied the suggestion that, he was deposing falsely and giving clean chit to accused Kailash, as he is his neighbourer.
18. It is argued by ld. Addl. PP for the State that accused persons had conspired to kidnap the prosecutrix to compel her to marry with accused Ajay @ Lalla. He further argued that from the testimony of prosecutrix it is proved that in pursuance of that conspiracy accused Geeta brought her to the market and thereafter called the accused persons Kailash and Ajay @ Lalla, who have kidnapped the P on the point of knife and accused Ajay @ Lalla took her to in a house where she was confined illegally and thereafter she was compelled for marriage. He further argued that testimony of prosecutrix is corroborated by her parents PW4 Geeta and PW5 Laxman Prasad and her sister PW9 Smt. 'P'. Therefore, prosecution has been able to prove the case against the accused persons, hence, they are liable to be convicted for offence punishable u/s. 363/368/506 IPC.
19. On the other hand, ld. Defence counsel for accused STATE VS KAILASH & ORS//FIR NO.13/07 PSSULTANPURI//U/S. 363/366/369/506/120B/34 IPC.
persons Kailash and Geeta argued that there are lot of contradictions and improvement in the statement of P and her cousine sister i.e. PW9 Smt. Ranjan. He argued that PW3 has not stated in her testimony that accused Kailash came with accused Ajay @ Lalla . He further argued that PW9 had not testified anything adverselyagainst accused Geeta only except that accused Geeta made a call from the market . But merely by making a telephone call it is not proved that call was made by accuse Geeta to accused persons. Hence, both the accused persons are entitled to be acquitted.
20. Ld. Counsel for accused Ajay @ Lalla has argued that P had long love affairs with the accused Ajay @ Lalla, but when accused refused to marry with her due to her relation with other boy of locality then P in connivance with her family member falsely implicated the accused Ajay @ Lalla in this case.
21. I have considered the arguments and gone through the record. The case of the prosecution is that accused persons have committed conspiracy to kidnap the prosecutrix for performing marriage of prosecutrix with accused Ajay @ Lalla and during her kidnapping, she was concealed in a house by the accused Ajay @ STATE VS KAILASH & ORS//FIR NO.13/07 PSSULTANPURI//U/S. 363/366/369/506/120B/34 IPC.
Lalla. Before appreciating the evidence, it would be appropriate to discuss the relevant provisions of Indian Penal Code.
"359 IPC. Kidnapping. Kidnapping is of two kinds, kidnapping from India and kidnapping from lawful Guardianship".
"360 IPC. Kidnapping from India. Whoever conveys any person beyond the limits of India without the consent of that person, or of some person legally authorized to consent on behalf of that person, is said to kidnap that person from India".
"361 IPC. Kidnapping from lawful guardianship. Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship".
"363 IPC. Punishment for kidnapping-- Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
366. Kidnapping, abducting or inducing woman to compel her marriage, etc. Whoever kidnaps or abducts any woman with intent that STATE VS KAILASH & ORS//FIR NO.13/07 PSSULTANPURI//U/S. 363/366/369/506/120B/34 IPC.
she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place which intent that she may be, or knowing that is is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid".
368. Wrongfully concealing or keeping in confinement, kidnapped or abducted person. "Whoever, knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person, shall be punished in the same manner as if he had kidnapped or abducted such person with the same intention or knowledge, or for the same purpose as that with or for which he conceals or detains such person in confinement".
120B IPC. Punishment of criminal conspiracy: (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous STATE VS KAILASH & ORS//FIR NO.13/07 PSSULTANPURI//U/S. 363/366/369/506/120B/34 IPC.
imprisonment for a term of two years or upwards, shall where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months or with fine or with both.
18. Since accuse Persons has been charged for criminal conspiracy of committing kidnapping of P for compelling her for marriage. It would be appropriate discuss what is criminal conspiracy.
Section 120A of the Indian Penal Code defines criminal conspiracy. According to the Section 120A IPC, when two or more persons agreed to do or cause to be done an illegal act or an act which is not illegal, but, done by illegal means. Such an agreement is designated as criminal conspiracy. In State Vs. Nalini 1999 SCC (Cri) 691 it was observed as under: "In reaching the stage of meeting of minds, two or more persons share information about doing an illegal act or a legal act by STATE VS KAILASH & ORS//FIR NO.13/07 PSSULTANPURI//U/S. 363/366/369/506/120B/34 IPC.
illegal means. This is the first stage where each is said to have knowledge of a plan for committing an illegal act or a legal act by illegal means. Among those sharing the information some or all may form an intention to do an illegal act or a legal act by illegal means. Those who do form the requisite intention would be parties to the agreement and would be conspirators but those who drop out cannot be roped in as collaborators on the basis of mere knowledge unless they commit acts or omissions from which a guilty common intention can be inferred. It is not necessary that all the conspirators should participate from the inception to the end of conspiracy; some may join the conspiracy after the time when such intention was first entertained by any one of them and some others may quit from the conspiracy. All of them cannot but be treated as conspirators.
Where in pursuance of the agreement the conspirators commit conspiracy, all of them will be liable for such offences even if some of them have not actively participated in the commission of those offences.
22. There is seldom direct evidence of criminal conspiracy and it has to be infered from circumstances.
STATE VS KAILASH & ORS//FIR NO.13/07 PSSULTANPURI//U/S. 363/366/369/506/120B/34 IPC.
23. In a case of kidnapping or abduction foremost issue is that whether prosecutrix was less then 18 years on the day of incident or not. Because if she was less than about 18 years on the day of incident only then her consent become material. The case of the prosecution is that P was less than 18 years of age on the day of incident. In this regard prosecution has proved the school admission record of the prosecutrix. As per the school admission record Ex.PW6/A, the date of birth of the prosecutrix is 09.05.1989. From the testimony of PW6, it is also evident that date of birth in the school record is mentioned on the basis of declaration by 'P's father Laxman Prasad, who had filed the affidavit Ex.PW6/Bwith regard to the Date of Birth Certificate of his daughter. There is no ground to dispute the said admission record. Further from the testimony of PW5 Laxman Prasad also it is evident that his marriage was performed in the year 1988 and P was born within 12 years of marriage. Hence, it corroborate the date of birth of prosecutrix as mentioned in the in the school record. The date of incident is 01.01.2007, hence, age of the P on the date of incident was 17 years 5 months. Therefore, it is proved that she was less than 18 years of age on the day of incident.
24. As state above, the most important witness of STATE VS KAILASH & ORS//FIR NO.13/07 PSSULTANPURI//U/S. 363/366/369/506/120B/34 IPC.
prosecution case is PW3/P and PW9 Ranjan in whose presence P was kidnapped. PW3 had deposed that on 01.01.2007 she alongwith her neighbourer Geeta and her cousin sister Ranjan went to Som Bazar, Prem Nagar for purchasing vegetables and there accused Geeta left her for sometime and after sometime came back and thereafter took her to a lonely passage and after sometime, she saw accused Ajay @ Lalla was coming from the opposite side. Thereafter, accused Ajay @ Lalla caught hold her hand and also shown her pistol and whereas accused Kailash shows her knife. Thereafter, Geeta left there and after sometime she sent her cousin sister Ranjan to call her parents. Similar facts she had deposed in statement u/s. 164 Cr.P.C. Ex.PW7/B recorded by the PW7 Shri Manoj Kumar, MM. Undoubtedly there are some contradictions in her statement u/s. 161 Cr.P.C. recorded by police and in her testimony as well as in her statement u/s. 164 Cr.P.C. in which fact of showing pistol by accused Ajay @ Lalla and of showing knife by accused Kailash is not mentioned. But even if I ignore the fact of showing pistol and knife by accused, it is proved that accused Ajay @ Lalla had taken prosecutrix by picking up her hands. Her testimony is corroborated by PW9 Smt. Ranjan, who had also STATE VS KAILASH & ORS//FIR NO.13/07 PSSULTANPURI//U/S. 363/366/369/506/120B/34 IPC.
deposed that accused Ajay @ Lalla had caught hold the hand of P and took away her forcefully. Nothing has come out in her cross examination also. Even if it is presumed that, 'P' had voluntarily accompanied with the accused offence of kidnapping is made out as 'P' is less then 18 years of age. The 'P' was kidnapped is also corroborated from the testimony of PW5 Laxman Prasad on whose statement Ex.PW5/A, FIR Ex.PW1/A has been lodged. From his testimony it is proved that P had left her house to go market on 01.01.2011 and she was returned on 02.01.2007. Similar facts have been deposed by PW4 Geeta the mother of the P. No suggestion has been given to the PW that P was not missing from the house from 01.01.2007 to 02.01.2007 or that with their consent P was taken away by the accused Ajay @ Lalla.
25. I do not find testimony of accused Ajay @ Lalla who has examined himself as DW1 reliable that he had love affairs with P. DW1 had deposed in his testimony that he loves P, but when he saw four/five boys with her, he refused to marry with her and that is why he was falsely implicated in the case, much reliable because he had not examined photographer to prove the joint photograph Ex.PW5/DX of him and P was taken with the consent of P. Neither STATE VS KAILASH & ORS//FIR NO.13/07 PSSULTANPURI//U/S. 363/366/369/506/120B/34 IPC.
he had placed on record the negative of the said photograph. Hence, the said photograph is not proved as per law. Trick photography in today's world cannot be ruled out. Hence, photograph Ex.PW5/DX has not been proved as per law. Whereas prosecutrix has specifically denied the love letter Ex.DW1/1 as written by her. Hence, Accuseed Ajay @ Lalla has failed to prove that, he had love affairs with P. Further, accused Ajay @ Lalla has failed to prove that, P had relationship with other boys, due to which he refused to marry with P and, therefore, she and her family members implicated him falsely. Hence, I do not find any ground to disbelieve the testimony of PW3 and PW9 that accused Ajay @ Lalla had forcibly taken away P. Hence, I held that prosecution has been able to prove beyond reasonable doubt that accused Ajay had kidnapped the P, therefore, offence u/s. 363 IPC is proved against him.
26. Further, as per the testimony of PW3/ prosecutrix, accused after kidnapping prosecutrix from Som Bazar took her to the lonely place inside the boundary wall, where he confined prosecutrix till 4pm. Thereafter, accused Ajay @ Lalla took her to uncle's house. Nothing has come out in the cross examination of the PW3 to disbelieve her testimony. She had returned to her home on next date STATE VS KAILASH & ORS//FIR NO.13/07 PSSULTANPURI//U/S. 363/366/369/506/120B/34 IPC.
i.e. 02.07.2007 at around 11pm, whereas she was kidnapped on 01.01.2007. Hence I held that prosecution has been able to prove that accused Ajay @ Lalla had confined prosecutrix in a lonely place after kidnapping her.
27. Further as per the testimony of prosecutrix/PW3 accused Ajay @ Lalla after kidnapping the prosecutrix took her to his uncle's house, where she was pressurized to marry with the accused by Murli, Purushottam, Pushpa, husband of Pushpa and Bhagwan Dass and under pressure she was agreed to marry with the accused and thereafter, accused and those persons took her to the advocate's house, when she refused to marry with the accused. Thereafter, they produced her before the police officials. Therefore, it is evident from the testimony of the prosecutrix that she was not compelled to marry with accused, otherwise, accused would not have allowed her to go to police chowki. She had not explained in her testimony that what pressure has been put by the accused on her for compelling her to marry. She had not stated in her testimony, that she was either beaten up by the accused or by other persons or that she was threatened to perform marriage with accused Ajay @ Lalla. There is no allegation levelled by her that, accused had tried to STATE VS KAILASH & ORS//FIR NO.13/07 PSSULTANPURI//U/S. 363/366/369/506/120B/34 IPC.
commit sexual intercourse or seduce her to commit sexual intercourse with her. Therefore, I held that prosecution has failed to prove that accused Ajay @ Lalla had kidnapped to compel her to marry with him, hence, I acquit him from charge u/s. 366 IPC.
28. As far as accused Kailash is concerned, prosecutrix/ PW3 in her testimony had stated that accused Kailash had also come with accused Ajay @ Lalla, when she was kidnapped but PW9 Smt. Ranjan who was with PW3 had not stated in her testimony stated that accused Kailash was also with the accused Ajay @ Lalla, when P was kidnapped. She was not cross examined by prosecution and no suggestion was given to her that accused Kailash was also with accused Ajay @ Lalla, when prosecutrix was kidnapped by accused Ajay @ Lalla. Further PW5 Laxman Prasad also in his statement Ex.PW5/A had not stated that Ranjan and Geeta told him that accused Kailash was with accused Ajay @ Lalla when P was taken away by accused Ajay @ Lalla. He had only stated that, he suspected hand of accused Kailash in the kidnapping of his daughter. DW3 Rajeshwar Prasad had proved that accused Ajay @ Lalla and Kailash were friend. Hence, it cannot be ruled out due to their friendship and PW5 both prosecution witnesses have deposed STATE VS KAILASH & ORS//FIR NO.13/07 PSSULTANPURI//U/S. 363/366/369/506/120B/34 IPC.
against accused Kailash. Hence, in such circumstances, I am of the view that prosecution has failed to prove beyond reasonable doubt that accused Kailash also conspired with accused Ajay @ Lalla in kidnapping of the P or he accompanied with accused Ajay @ Lalla, when prosecutrix was kidnapped. Hence, I acquit him for offence u/s. 363/366/368 IPC or 120B IPC for entering into criminal conspiracy to commit the aforesaid offence.
29. As far as accused Geeta is concerned, as per prosecution case, her role is that, she took P to the market and she made a telephone call to accused persons Ajay @ Lalla and Kailash, who kidnapped P and took her away. Thus, role of accused Geeta is entering into criminal conspiracy to commit kidnapping of P. But, in my view there is no sufficient evidence that she had conspired with the accused persons Ajay @ Lalla and Kailash in kidnapping. As per testimony of PW3, accused Geeta had taken the prosecutrix to the market and there she gone somewhere and returned after sometime. Even if, I believe the version of the P, it cannot be presumed that accused Geeta brought P to market for facilitating the accused Ajay @ Lalla and Kailash in kidnapping of the P. There is no evidence on record that, when accused was away, she made the call to the STATE VS KAILASH & ORS//FIR NO.13/07 PSSULTANPURI//U/S. 363/366/369/506/120B/34 IPC.
accused persons. No mobile phone record of the accused Ajay @ Lalla or accused Kailash have been placed on record to prove that accused Geeta made telephone call from the STD Booth to them. Further, in statement u/s. 164 Cr.P.C, P stated that, accused Geeta made a call from local STD booth, but in her testimony in the court she had not said the fact of making call by her but only stated that, Geeta gone some where else and return after sometime. Hence, even if it is believed that, she had gone somewhere and after her return accused Ajay @ Lalla had arrived at the spot, it cannot be ruled out that same may be by chance. Further PW3 had stated that after arrival of the accused persons, Geeta had uttered the word that, 'mera kaam ho gaya, main jaa rahi hu',. But PW9 in her testimony had not corroborated the said fact that Geeta uttered the said words. Further, PW2 herself stated in her statement u/s. 161 Cr.P.C. that Kailash had asked her to go, as her work finished. Hence, there is contradictions in the testimony of P. PW9 Smt. Ranjan, who was with prosecutrix at the time of kidnapping had not stated in her testimony and accused Geeta uttered any such word. Therefore, in such circumstances, I held that prosecution has failed to prove beyond reasonable doubt that accused Geeta had any role STATE VS KAILASH & ORS//FIR NO.13/07 PSSULTANPURI//U/S. 363/366/369/506/120B/34 IPC.
in kidnapping of P. Hence, I acquit accused Geeta for offence punishable u/s. 363/366/368 IPC and 120B IPC for entering into criminal conspiracy for committing aforesaid offence.
30. Accused persons have also been charged for offence u/s. 506 IPC. The P has stated in her testimony that, accused had threatened to kill her parents if she did not accompany with them. But PW9 Smt. Ranjan had not corroborated the said fact. Further PW9 in her testimony had not stated that accused Kailash put knife upon her or accused Ajay @ Lalla put pistol in her stomach or that they had threatened her, but accompany with them, otherwise, her parents will be killed. Even, she had not stated in her testimony about the presence of accused Kailash at the time of kidnapping of P. Prosecution has failed to recover any weapon by showing them accused had allegedly threatened P. Hence, I held that prosecution has failed to prove beyond reasonable doubt that, P was criminally intimidated by accused Ajay @ Lalla, therefore, I acquit him for charge u/s. 506 IPC.
31. In view of the aforesaid facts and circumstances, I convict accused Ajay @ Lalla for offence u/s. 363/368 IPC and acquit him for offence punishable u/s.366/506 IPC and also for STATE VS KAILASH & ORS//FIR NO.13/07 PSSULTANPURI//U/S. 363/366/369/506/120B/34 IPC.
offence u/s. 120B IPC. Further, I held that, prosecution has failed to prove any offence against accused persons Kailash and Geeta and hence, I acquit Kailash and Geeta from all the charges. Now to come up for order on sentence.
Announced in the open court (Sanjeev Kumar)
On 11.01.2013 Addl. Sessions Judge
Rohini Courts: Delhi.
STATE VS KAILASH & ORS//FIR NO.13/07
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