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Delhi High Court ticks off trial court over 'casually written judgment' in 'kidnapping' case – The Indian Express

The Delhi High Court has set aside the conviction order against two women in connection with a kidnapping case from 2007, holding that a “casually written judgment and casually appreciated evidence is a causality to justice”.
A single judge bench of Justice Swarana Kanta Sharma made the observation in its judgment dated October 20. In 2009, the trial court had held the women appellants guilty of concealing a girl in their house, who was allegedly kidnapped by another accused. The trial court had sentenced the appellants to rigorous imprisonment for three years and a fine of Rs 5,000 for an offence under IPC section 368 (wrongfully concealing or keeping in confinement, kidnapped or abducted person).
As per the facts of the case, the girl had gone to fetch water at a public hydrant where she met the accused and accompanied him, after he claimed he will “marry her”. The girl later alleged she was taken to the accused’s aunt’s house, where she met the appellants and was kept for four-five days. Meanwhile, the girl’s father lodged an FIR against the accused “declaring that he had suspicion” about his involvement in his daughter’s kidnapping. The trial court upheld the girl’s testimony on the point that she was “wrongfully concealed” by the appellants.
The appellants had contended that there was no scientific proof or evidence to show that the girl was less than 18 years old on the date of the incident. It was also argued that the testimonies of the witnesses were contradictory in nature and such contradictions were sufficient to declare the trial court “judgement and order a nullity”.
The court, while delivering the judgement, examined the essential elements of an offence under section 368 IPC. “A cursory reading of Section 368 reveals that only once the offence of kidnapping is committed can there emerge a knowledge of kidnapping or such knowledge could be wrongfully concealed by someone. Thus, the first essential under Section 368 is the ‘commission of the offence of kidnapping’ by someone. The second element for the commission of offence under Section 368 would be the ‘knowledge’ to the accused about kidnapping of a person. The third element would be ‘wrongful concealment or confinement’ of the person concerned,” the court observed.
The HC further observed that “kidnapping means ‘kidnapping from lawful guardianship’ as provided under Section 361, and for Section 361 to come into play, a minor of less than 16 years of age if male and 18 years of age if female should have been enticed away from their lawful guardian”.
With respect to the age of the girl, the HC observed that the girl was about 18 years on the date of the incident based on the testimonies of her parents.
The HC also noted that the medical report of the doctor said that she cannot comment on her age. While the trial court had concluded her age to be around 13 years, the HC held that there was nothing on record to prove her age with certainty.
The HC also observed that inconsistencies in the testimonies of the prosecution witnesses created doubts in the case of the prosecution.
The HC also noted that the girl did not raise any alarm while she allegedly travelled to different places, for the entire time that she was allegedly kidnapped, thereby making the trustworthiness and reliability of her statement questionable.
The Court observed that “appreciation of evidence is crucial to do justice”, holding that a court has to appreciate the testimony of the witnesses as a whole while deciding a case and reaching its conclusion. The HC held that the prosecution failed to prove their case under Section 368 “beyond reasonable doubt”.
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Malavika PrasadMalavika Prasad is a former lawyer and now a City Reporter covering De… read more