Kapil @ Vijay vs The State (N.C.T. Of Delhi)
2013 Latest Caselaw 5633 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                          RESERVED ON : 2nd DECEMBER, 2013
                          DECIDED ON : 5th DECEMBER, 2013

+                         CRL.A. 223/2000

       KAPIL @ VIJAY                                   ....Appellant
                Through :        Mr.Sahid Ali, Advocate with
                                 Mr.Mohd.Shariq, Advocate.

                                 versus

       THE STATE (N.C.T. OF DELHI)            ....Respondent
                Through : Mr.Lovkesh Sawhney, APP.

       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

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 ` 500/- under Section 364 IPC and RI for three years with

fine ` 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. 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. 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. 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.

(S.P.GARG) JUDGE DECEMBER 05, 2013/tr