Nanak Chand vs Ram Kishan & Ors
2014 Latest Caselaw 3618 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
%                              Date of decision: August 08 , 2014

+                        CRL.A. 421/2014
      NANAK CHAND                                         ..... Appellant
              Represented by:         Mr.K.N.Jha, Adv.

                                      versus
      RAM KISHAN & ORS                                .... Respondents
              Represented by:         Mr.Lovkesh Sawhney, APP for State
                                      Mr.Sumit Bhardwaj, Adv. for R-1&2.

CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA

MUKTA GUPTA, J. (ORAL)

1. By this appeal under the proviso to Section 372 Cr.P.C. the appellant/complainant of FIR No. 53/2008 under Sections 363/364/34 IPC registered at PS Mangol Puri challenges the order dated February 05, 2014 acquitting the respondents of the charges framed against them.

2. Nanak Chand assails the judgment on the ground that the learned Trial Court erroneously acquitted the respondents failing to appreciate that Nanak Chand was under the fear of his life and property at the hands of accused receiving threatening calls and thus he did not lodge any complaint immediately after the kidnapping. The learned Trial Court overlooked the statement of child Raj Kumar recorded under Section 164 Cr.P.C. which clearly implicated the respondents and deposed as to how he came out of the clutches of the respondents.

3. We have heard learned counsel for the appellant and perused the record.

4. Investigation was set into motion when Nanak Chand gave a written complaint to in-charge Police Post Mangol Puri on January 25, 2008 alleging that his son Raj Kumar aged 9 years was missing since 9.30 am on January 18, 2008from the park adjoining his house. After his son was recovered he got to know that his son was kidnapped by Ram Kishan, brother of his co-brother and his friend Rajesh on January 18, 2008 in a three wheeler. On January 19, 2008 when the respondents were smoking while standing at bus stand Anand Vihar on January 19, 2008 his son escaped from their attention and came to him by boarding a bus. After his son boarded the bus he informed the conductor who in turn informed on his mobile. On this statement FIR as noted above was registered and on February 23, 2008 respondent Ram Kishan was arrested. On March 11, 2008 statement of Raj Kumar was recorded under 164 Cr.P.C. Though PW- 2 Raj Kumar and PW-3 Nanak Chand stood by their earlier version recorded in the witness box in view of the contradictions and improvements brought in the testimony of these witnesses and the defence evidence, the Trial Court came to the conclusion that the respondents are entitled to benefit of doubt.

5. As noted above there was considerable delay in lodging of FIR, even much after the kidnapped child came back to his home. There is no evidence to show that the pressure or fear was lurking large on the complainant even after his son had come back to his house on January 19, 2008. Though a telephone call has been deposed to be made to the father by the conductor, however neither the conductor has been brought in the witness box nor the telephone records exhibited. As against this, defence

has examined two witnesses DW-1 Ram Bharose the brother-in-law of Nanak Chand and DW-2 Sunita his wife.

6. DW-1 Ram Bharose deposed that he came to Delhi from his native village and brought silver jewellery and ` 45,000/- in cash to start work of Kabari. He kept all the cash with Nanak Chand. Though he resided for a few days with Nanak Chand after coming from his native village, he later called Rajesh and Ram Kishan to work with him in Delhi. Ram Kishan was his real brother and Rajesh co-brother. All of them worked together as Kabaris on supervision of PW-3 Nanak Chand. He further stated that Nanak Chand had an evil eye on his wife and had outraged the modesty of his wife on January 15, 2008 due to which quarrel had taken place between Nanak Chand and the respondents. Nanak Chand was beaten by the respondents. When he received information from his brother Ram Kishan about the incident he came back after two hours. Nanak Chand stated that the incident be not repeated to anybody and he assured the return of his jewellery articles. However, the same was not returned. According to DW-1 Nanak Chand's child was not kidnapped and he had hid his child for one day and implicated Ram Kishan and Rajesh falsely. He also exhibited his complaint filed in PS Mangol Puri vide DD No.40B on March 30, 2008 vide Ex.DW- 1/A. He stated that till that date Nanak Chand has not returned his jewellery articles and the same were kept with him.

7. DW-2 Sunita wife of Ram Bharose stated that she had been called from her native village to Delhi. They stayed in the house of Nanak Chand for 10-12 days. They gave their jewellery and cash to their sister for doing the business. Thereafter they shifted to a rented accommodation, however the said jewellery and cash has not been given till date. Rather Nanak

Chand had an evil eye on her and used to outrage her modesty.

8. The delay in lodging the FIR not being satisfactorily explained, there being no evidence to corroborate the version of Nanak Chand, rather the version of the defence being plausible, the learned Trial Court acquitted the respondents and in our opinion rightly so. The respondents have been able to prove that there was an enmity between the respondents and the complainant who had reasons to falsely implicate them and hence the learned Trial Court committed no error in granting benefit of doubt to the respondents. We concur with the same.

9. Appeal is accordingly dismissed.

10. TCR be sent back.

(MUKTA GUPTA) JUDGE

(PRADEEP NANDRAJOG) JUDGE AUGUST 08 , 2014 'ga'