Research › Search › Judgment

Delhi High Court · body

2013 DIGILAW 2353 (DEL)

Kapil @ Vijay v. State (N. C. T. of Delhi)

2013-12-05

S.P.GARG

body2013
JUDGMENT : S.P. Garg, J. 1. Kapil @ Vijay (the appellant) challenges the correctness and legality of conviction under Section 364/307 IPC in Sessions Case No. 139/98 arising out of FIR No. 349/98 PS Timar Pur by a judgment dated 24.03.2000. By an order dated 28.03.2000, he was awarded RI for three years with fine Rs. 500/- under Section 364 IPC and RI for three years with fine Rs. 500/- under Section 307 IPC. Both the sentences were to operate concurrently. 2. Allegations against the appellant were that on 10.08.1997, he kidnapped Rajinder Singh @ Happy aged about 14 years and inflicted injuries to him. On 10.08.1997, the victim went missing and his mother Surinder Kaur lodged missing person report vide Daily Diary (DD) No. 10 (Ex.PW-3/A). Efforts in vain were made to find out the whereabouts of the child. On 13.08.1997, the child returned on his own on a rickshaw and was taken to the police station by her parents. He was admitted in Hindu Rao Hospital and was medically examined. The Investigating Officer, after recording his statement (Ex.PW-1/A) lodged First Information Report. During the course of investigation, statements of the witnesses conversant with the facts were recorded and the appellant was arrested. After completion of investigation, a charge-sheet was filed in the Court and the appellant was duly charged and brought to trial. The prosecution examined ten witnesses to bring home the charge. In his 313 statement, the appellant denied his complicity in the crime and examined DW-1 (Krishan Gopal) in defence. The trial resulted in conviction for the offence mentioned previously giving rise to the filing of the present appeal. 3. I have heard the learned counsel for the parties and have examined the record. At the outset, it may be mentioned that the appellant was aged about 17 years on the day of incident. Though, he did not take specific plea of juvenility on the day of incident during trial, the sentence order dated 28.03.2000 records his age as 17 years on the day of occurrence. The appellant had also filed an affidavit dated 28.03.2000 in the Trial Court and had claimed that he was minor at the time of alleged offence. However, no investigation/inquiry was conducted to ascertain his exact date of birth. 4. The victim went missing on 10.08.1997. The appellant had also filed an affidavit dated 28.03.2000 in the Trial Court and had claimed that he was minor at the time of alleged offence. However, no investigation/inquiry was conducted to ascertain his exact date of birth. 4. The victim went missing on 10.08.1997. However, missing person report was lodged on 11.08.1997 at 12.15 P.M. vide Daily Diary (DD) No. 10 (Ex.PW-3/A). Victim’s mother did not suspect the appellant’s involvement in the disappearance of the child. The Investigating Officer did not elaborate as to what efforts were carried out to find out the whereabouts of the child till he returned on his own to his house on 13.08.1997. The Investigating Officer did not conduct investigation to verify the victim’s claim that during these three days, he remained lying in injured condition near the banks of Yamuna. His bloodstained clothes were not seized. Statement of the victim was not recorded soon after he was taken to the police station on 13.08.1997. The Investigating Officer did not offer any reasonable explanation in recording his statement on 14.08.1997. The child was conscious and oriented and of his own allegedly arrived at on the main road to take rickshaw to his house. Even when he was admitted in the hospital, he was conscious. The statement recorded on 14.08.1997 (Ex.PW-1/A) is an exhaustive and detailed one which cannot be expected to be given by a child aged about 14 years. The statements of the other relevant witnesses were recorded after unexplained considerable delay. During trial, the rickshaw-puller who had brought the child to the house was not examined to throw light as to where the child met him and what was his physical condition that time. The child admitted in cross-examination that he had accompanied the appellant with his free consent to view a movie. No explanation was given as to why he mislead his parents and informed them that he was going to visit his sister at Kishan Ganj. The child had gone unexpectedly on that day at the shop of the appellant to get the cycle-rickshaw repair. Apparently, the appellant had no pre-plan to kidnap him and to inflict injuries on his body. There is conflict between the ocular and medical evidence. As per victim’s statement, he was inflicted injuries twice by a ‘knife’ on his vital organs. The child had gone unexpectedly on that day at the shop of the appellant to get the cycle-rickshaw repair. Apparently, the appellant had no pre-plan to kidnap him and to inflict injuries on his body. There is conflict between the ocular and medical evidence. As per victim’s statement, he was inflicted injuries twice by a ‘knife’ on his vital organs. However, PW-5 (Dr.Sham Kishore Prasad), who medically examined the child on 13.08.1997 at 09.45 A.M. brought by Const.Subhash Chand with the alleged history of assault found an old infected injury over abdomen, right thigh, right forearm and left thumb. The injuries were opined ‘simple’ caused by ‘blunt object’. Apparently as per the report of the doctor, there was no injury caused by any sharp weapon. No such knife was also recovered during investigation. It is unbelievable that the child aged about 14 years would remained lying at the spot for three days in injured condition and nobody would notice him or that he would be physically fit to travel up to main road and then to take the rickshaw-puller to the house. It appears that the victim has not given true version of the incident and has suppressed material facts. The prosecution did not explain the duration of the ‘injuries’ found on the body of the victim. There was no motive for the appellant aged about 17 years to cause injuries to the victim. It has come on record that the victim used to visit the appellant’s shop to get his cycle repaired and also both of them used to go for strolling on many occasions. The alleged incident of sale of stolen scooter by the appellant’s brother was not enough to motivate him to eliminate the child. PW-4 (Gurpreet @ Sonu), with whom the alleged quarrel had taken place earlier, did not depose about that. The investigation carried out is highly defective. The contents of the statement given by the victim were not confirmed or verified from independent sources. No independent witness was joined at the time of recovery of the ‘belt’ used in the crime. The conviction is based primarily on the statement of the victim which cannot be taken as credible in view of the infirmities and flaws referred above. The prosecution was unable to establish its case beyond reasonable doubt. No independent witness was joined at the time of recovery of the ‘belt’ used in the crime. The conviction is based primarily on the statement of the victim which cannot be taken as credible in view of the infirmities and flaws referred above. The prosecution was unable to establish its case beyond reasonable doubt. Benefit of doubt is given and the appellant is acquitted while setting aside his conviction and sentence. The appeal is allowed. Bail bond and surety bond stand discharged. 5. Trial Court record be sent back forthwith.