Couple acquitted in kidnapped-woman confinement case as Delhi HC finds prosecution failed to prove they knew she was abducted

The prosecutrix reported at Police Station Burari on 5 July 2011 that Babul had induced her to accompany him to Delhi on a promise of marriage and thereafter sold her for ₹16,000 to Rajiv and appellant Nazre Alam @ Ravi.

She alleged that she was sexually assaulted and forced into prostitution.

Ravi and his wife, Noorjahan, were arrested, while Babul, Rajiv and Ravi’s mother Munni could not be apprehended.

The prosecutrix was medically examined and her statement was recorded under Section 164 Cr.P.C.

During trial, however, she resiled from material allegations against the appellants and stated that Ravi and Noorjahan had treated her properly and had not harmed her.

The Trial Court convicted both appellants under Section 368 IPC and sentenced them to two years’ rigorous imprisonment with a fine of ₹10,000 each, while Ravi was acquitted under Sections 373 and 376(2)(g) IPC.

The appellants challenged the conviction, principally contending that the prosecution had failed to prove that they knew the prosecutrix had been kidnapped or abducted.

1. Whether the prosecution proved that the appellants knew that the prosecutrix had been kidnapped or abducted, as required under Section 368 IPC?

2. Whether the evidence established that the appellants wrongfully concealed or confined the prosecutrix despite such knowledge?

3. Whether the conviction under Section 368 IPC could be sustained notwithstanding the prosecutrix’s hostile testimony and the surrounding circumstances relied upon by the prosecution?

The Court applied Section 368 IPC, which criminalises wrongfully concealing or keeping in confinement a person known to have been kidnapped or abducted.

Relying on Saroj Kumari v. State of U.P., (1973) 3 SCC 669, it identified three essential ingredients: the person must have been kidnapped; the accused must have known of the kidnapping; and, with such knowledge, the accused must have wrongfully concealed or confined that person.

It further relied on Puran Singh v. State of Bihar, JT 2001 (8) SC 647, which characterises knowledge of the victim’s kidnapping or abduction as the sine qua non for Section 368 liability.

The Court also applied the rule from Khujji @ Surendra Tiwari v. State of Madhya Pradesh, (1991) 3 SCC 627, that the evidence of a hostile witness is not wholly effaced and may be relied upon to the extent it remains credible.

The Court accepted that the prosecutrix’s earlier accounts indicated that she had been lured to Delhi, sexually assaulted and placed in circumstances connected with prostitution.

It also found her subsequent clean chit to the appellants suspicious, particularly because she had independently approached the police, undergone medical examination and made a statement under Section 164 Cr.P.C.; these circumstances suggested that she may have been won over.

The Court further noted the failed preservation of the foetus in formalin, which prevented DNA profiling and deprived the prosecution of potentially corroborative scientific evidence.

Nevertheless, suspicion and circumstantial inference could not substitute proof of the specific statutory ingredients of Section 368.

The prosecution did not produce sufficient evidence establishing that the appellants knew the prosecutrix was kidnapped or abducted and, with that knowledge, wrongfully concealed or confined her.

Since knowledge is an indispensable element of the offence, the conviction could not be sustained.

The appeal was therefore allowed, the conviction and sentence under Section 368 IPC were set aside, and the appellants’ bail bonds were discharged.

Pending applications, if any, were disposed of, and copies of the judgment were directed to be transmitted to the Trial Court and prison authorities.