Delhi District Court
State vs . Jeetu @ Jitender on 22 April, 2014
State Vs. Jeetu @ Jitender
SC No. 13/14
FIR No. 05/13
PS: Chhawla
IN THE COURT OF SH. ANIL KUMAR:
ADDITIONAL SESSIONS JUDGE05 : DWARKA COURTS : DELHI
In the matter of:
Unique ID of the case : 02405R0035772013
SC No. : 13/14
FIR No. : 05 /2013
Police Station : Chhawla
Under Section : 363/366 IPC
Date of Institution : 13.02.2013
Reserved for orders on : 22.04.2014
Judgment announced on : 22.04.2014
State Vs. Jeetu @ Jitender
S/o Shri Bhuri Singh
R/o Durga Vihar PhaseII,
Near Shiv Mandir, Delhi.
J U D G E M E N T
1. The accused Jeetu @ Jitender has been sent for trial for the offences punishable under Section 363/366 IPC.
2. As per the story of prosecution, brief facts of the case in the nutshell are that on 04.01.2013, on receipt of DD No. 28A, I.O./SI Sandeep Kumar alongwith Ct. Banwari Lal reached at Page no. 1 / 17 State Vs. Jeetu @ Jitender SC No. 13/14 FIR No. 05/13 PS: Chhawla Deenpur Chowk where complainant Shri Ganga Ram produced one girl namely Aarti, aged about 14 years and accused Jeetu @ Jitender, aged about 21 years and got recorded his statement vide which he stated that he is a mason by profession and on 04.01.2013 at about 3.00 p.m., his daughter namely Aarti was found missing without any information and on enquiry he came to know that accused Jeetu @ Jitender had taken away his daughter for marrying with her and when in the search of both, complainant was coming towards PS Chhawla, at Deenpur Chowk he found standing his daughter Aarti in the company of one boy whose name he came to know as Jeetu @ Jitender and stopped them and made a call to the police and on enquiry, Aarti and accused Jeetu @ Jitender disclosed that they got married in Hanuman Mandir, Najafgarh. Complainant stated that since the accused Jeetu @ Jitender had got married with his minor daughter, so legal action be taken against him. On the basis of statement of complainant, case under Section 363/366 IPC was registered against the accused. Thereafter, I.O/SI Sandeep Kumar and W/Ct. Prabha took the prosecutrix Aarti alongwith her mother to RTRM Hospital for the medical examination of Aarti and got her medically examined. Thereafter, the accused Jeetu @ Jitender was arrested. Since the accused had abducted the prosecutrix, who was minor, since her statement under Section Page no. 2 / 17 State Vs. Jeetu @ Jitender SC No. 13/14 FIR No. 05/13 PS: Chhawla 164 Cr.P.C was got recorded on 05.01.2013 where she admitted the fact of her marriage with the accused without the knowledge of her parents. Thereafter, I.O./SI Sandeep Kumar collected the documents related to the age of prosecutrix from her MCD School, Paprawat Gaon according to which the date of birth of prosecutrix was found to be 12.11.1999. Thereafter, for ascertaining the safe custody of prosecutrix Aarti for producing her before the Child Welfare Committee, Nirmal Chhaya, Hari Nagar, prosecutrix Aarti was sent to Child Home for Girls, Nirmal Chhaya. Thereafter, on conclusion of necessary investigation, chargesheet was prepared and the same was filed in the Court of Ld. Area Magistrate/Ld. M.M.
3. After supplying the complete copies to the accused persons, the concerned Ld. Metropolitan Magistrate committed the case to the Court of sessions complying the provisions under Section 207/209 Cr.P.C., as the offence under Section 363/366 IPC for which the cognizance was taken, was triable by the Court of Sessions.
4. After hearing arguments on the point of charge vide order dated 21.03.2013, the charge under Section 363/366 IPC against the accused Jeetu @ Jitender was framed to which he pleaded not Page no. 3 / 17 State Vs. Jeetu @ Jitender SC No. 13/14 FIR No. 05/13 PS: Chhawla guilty and claimed trial.
5. For discharging the onus placed on it, prosecution tendered 11 witnesses in all to establish its case as per law namely: PW1 Shri Ganga Ram (Complainant) PW2 Ms. Aarti (Prosecutrix) PW3 Smt. Prem Wati PW4 W/Ct. Om Prabha PW5 Ms. Mithlesh Rani Sharma, Principal, MCD School.
PW6 Shri Akash Jain, Ld. Metropolitan Magistrate.
PW7 Ct. Anita
PW8 HC Sujit Singh
PW9 Dr. Yogendra Sharma
PW10 Ct. Banwari Lal
PW11 SI Sandeep Kumar
6. On conclusion of prosecution's evidence, PE was closed and statement of accused Jeetu @ Jitender was recorded under section 313 Cr.P.C wherein he controverted the entire prosecution evidence as false and fabricated and pleaded innocence. Accused did not lead any evidence in his defence.
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7. Before proceedings further, I would like to discuss the evidences led by the prosecution to prove its case.
8. Complainant/Shri Ganga Ram stepped into the witness box as PW1 and has deposed that about six months ago his daughter Aarti, aged about 16, was taken away by one boy namely Neetu and on reaching home, he came to know that his daughter and said Neetu had got married and so he went to the house of said Neetu and apprehended his daughter and Neetu. He further deposed that thereafter, he went to the police station alongwith his daughter and lodged report with the police vide his statement Ex.PW1/A. He further deposed that his daughter was kept in Naari Nitketan for about 2 ½ months.
Since the complainant/Shri Ganga Ram (PW1) was not supporting the case of prosecution, hence, he was cross examined by Ld. Addl. P.P. for the State with the permission of the Court. During his cross examination done by the Ld. Addl. P.P. for the State, PW1 admitted that his daughter Aarti went missing from his home on 04.01.2013 at 3.00 p.m. and on enquiries, he came to know that accused Jeetu @ Jitender had kidnapped his daughter for marrying her. He further admitted that when in search of his daughter he was going towards PS Chhawla, he Page no. 5 / 17 State Vs. Jeetu @ Jitender SC No. 13/14 FIR No. 05/13 PS: Chhawla found his daughter Aarti and accused Jeetu @ Jitender standing at Deenpur Chowk and he stopped them and called the police on telephone. PW1 further admitted the date of birth of his daughter Aarti to be 12.11.1999. During his cross examination by Ld. Addl. P.P. for the State, PW1 also proved the school identity card and school Leaving Certificate of his daughter as Ex.PW1/B and Ex.PW1/C respectively. PW1 also identified the accused Jeetu @ Jitender, who was present in the Court, to be the person who was arrested by the police in his presence. He proved the arrest memo of accused vide Ex.PW1/D and personal search memo of accused vide Ex.PW1/E. He also proved the disclosure statement of accused vide Ex.PW1/F and recovery memo of his daughter as Ex.PW1/G.
9. PW2 Ms. Aarti (Prosecutrix) has deposed that she knows the accused Jeetu @ Jitender and on 04.01.2013, she alongwith the accused Jeetu @ Jitender had gone to Sai Baba Mandir, Najafgarh without disclosing it to anyone in her family and from there they both came back to their houses. She further deposed that on returning home, her parents called the police and handed over her and the accused to police. PW2 further deposed that accused did not marry with her and also did not make any physical relations with her. She further deposed that her Page no. 6 / 17 State Vs. Jeetu @ Jitender SC No. 13/14 FIR No. 05/13 PS: Chhawla statement was not recorded by the police. She proved her statement under Section 164 Cr.P.C. made in the Court, vide Ex.PW2/A. Prosecutrix (PW2) was not supporting the case of the prosecution, therefore, with the permission of the Court, she was cross examined by the Ld. Addl. P.P. for the State wherein she denied the suggestions put to her qua her age and deposed that her date of birth in school record is wrong. She further denied that on 04.01.2013 accused had told her that he wanted to marry her and was willing to take her away. She further denied that accused Jeetu had married with her in a temple at Najafgarh and also put vermilion in her head. She denied all the suggestion put to her by the Ld. Addl P.P. for the State.
10. PW3, Smt. Prem Wati, mother of the prosecutrix has deposed that she does not know the age of prosecutrix. She further deposed that one day, around six months ago, she found her daughter missing from home and she started making search for her and her daughter was found in the house of accused Jeetu @ Jitender. She further deposed that her daughter and accused were going to marry but they were apprehended before they could marry and in the meantime, her husband also reached there and Page no. 7 / 17 State Vs. Jeetu @ Jitender SC No. 13/14 FIR No. 05/13 PS: Chhawla called the police. She further deposed that her daughter has studied upto 8th standard in a school at Paprawat. She further deposed that her daughter was medically examined and during her medical examination she and her daughter were not inclined for internal medical examination of her daughter.
PW3 was then cross examined by Ld. Addl. P.P. for the State since she was not fully supporting the case of the prosecution and during her cross examination she admitted the age of her daughter/ prosecutrix to be 14 years but she denied the fact of marriage of her daughter with the accused.
11. PW4 Ct. Om Prabha has deposed that on 04.01.2013 she had taken the prosecutrix to RTRM Hospital for her medical examination and after the medical examination, she had obtained her MLC and handed it over to the I.O.
12. PW5 Ms. Mithlesh Rani Sharma, Principal MCD Primary School (Girls), Paprawat, Najafgarh, New Delhi has proved the copy of certificate issued by her proving the date of birth of prosecutrix Aarti to be 12.11.1999, as per the school record, vide Ex.PW5/A. Page no. 8 / 17 State Vs. Jeetu @ Jitender SC No. 13/14 FIR No. 05/13 PS: Chhawla
13. PW6 Shri Akash Jain, Ld. Metropolitan Magistrate, Dwarka Courts had recorded the statement of prosecutrix Aarti under Section 164 Cr.P.C. and proved on record the primary question put to her before recording her statement under Section 164 Cr.P.C. vide Ex.PW6/A. The proceedings regarding the identification of prosecutrix has been proved as Ex.PW6/B and the certificate regarding correctness of proceedings is proved as Ex.PW6/C. The application moved by the I.O. for supplying the copy of statement under Section 164 Cr.P.C. is proved as Ex.PW6/D.
14. PW7 Ct. Anita has deposed that on 05.01.2013, she alongwith I.O./SI Sandeep Kumar had taken the prosecutrix from Nirmal Chhaya to Dwarka Courts for getting her statement recorded under Section 164 Cr.P.C. and had left her at Nirmala Chhaya after recording of her statement.
15. PW8 HC Sujit Singh has deposed that on 04.01.2013 he was the duty officer and had registered the present FIR bearing no. 05/13 on the basis of rukka presented by SI Sandeep Kumar. He proved the copy of FIR vide Ex.PW8/A and the endorsement made on the rukka vide Ex.PW8/B. Page no. 9 / 17 State Vs. Jeetu @ Jitender SC No. 13/14 FIR No. 05/13 PS: Chhawla
16. PW9 Dr. Yogender Sharma has deposed that he had medically examined the prosecutrix on 04.01.2013 and proved the detailed MLC prepared by him vide Ex.PW9/A. He further deposed that thereafter, the prosecutrix was referred to the gynaecology department.
17. PW10 Ct. Banwari Lal has deposed that on 04.01.2013, he alongwith SI Sandeep Malik reached at the spot i.e. Deenpur Mod where complainant Ganga Ram alongwith one boy and girl met them who told that accused Jitender was taking his daughter away. PW10 has further deposed that complainant Ganga Ram handed over the accused to SI Sandeep Malik and from there he alongwith SI Sandeep Malik, complainant Ganga Ram, accused Jitender and the prosecutrix came to the police station and there SI Sandeep Malik recorded the statement of Ganga Ram and also of prosecutrix. PW10 has further deposed that, thereafter, accused Jeetu @ Jitender was arrested by SI Sandeep Malik and his personal search was conducted. PW10 has further deposed that on the same day he had taken the accused to RTRM Hospital for his medical examination and after his medical examination he took the accused to PS Najafgarh where he put him in the lockup.
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18. PW11 SI Sandeep Kumar has deposed that on 04.01.2013, he alongwith Ct. Banwari Lal had reached at the spot i.e. Deen pur Mode, Main Gurgaon Road, Najafgarh where complainant Ganga Ram met them and handed over to them the accused Jitender @ Jeetu and also produced one girl namely Aarti. PW11 further deposed that thereafter, he recorded the statement of complainant Ganga Ram and from there he alongwith complainant Ganga Ram, accused Jitender @ Jeetu and the prosecutrix Aarti came back to police station. PW11 further deposed that thereafter, he prepared rukke vide Ex.PW11/A and got the case registered. He further deposed that he had recorded the statement of prosecutrix Aarti in the presence of W/Ct. Om Prabha and arrested the accused and had conducted the personal search of accused. He further deposed that accused Jeetu also made his disclosure statement. PW11 further deposed that, thereafter, prosecutrix Aarti was sent to RTRM Hospital for her medical examination throug Lady Ct. Om Prabha and mother of the prosecutrix and after the medical examination, the prosecutrix was sent to Nirmal Chhaya. He further deposed that thereafter, accused Jeetu was sent to RTRM Hospital for his medical examination through Ct. Banwari Lal and after his medical examination, accused was put in the lockup. PW11 further deposed that on the next day, prosecutrix Aarti was brought to Page no. 11 / 17 State Vs. Jeetu @ Jitender SC No. 13/14 FIR No. 05/13 PS: Chhawla Dwarka Courts through Lady Ct. Anita and where statement of prosecutrix was got recorded under Section 164 Cr.P.C. and on the same day, accused Jeetu was produced before the Ld. Metropolitan Magistrate, Dwarka Courts, New Delhi and he was sent to J.C. PW11 further deposed that during investigation, he also collected the relevant document regarding age proof of the prosecutrix from the MCD School, Paprawat Village, Najafgarh and on completion of the investigation, he prepared the challan and filed the same in the concerned court of Ld. Metropolitan Magistrate, Dwarka Courts, New Delhi.
19. I have perused the records and given my prolonged consideration to the controversy in hand and to the submissions made by Ld. Addl. P.P. for the State and Ld. Defence Counsel.
20. In the case in hand accused is facing trial of offences under Section 363 and 366 IPC.
21. Section 363 of the Indian Penal Code is read as under:
"Whoever kidnaps any person from [India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to Page no. 12 / 17 State Vs. Jeetu @ Jitender SC No. 13/14 FIR No. 05/13 PS: Chhawla fine"
22. Section 366 of the Indian Penal Code is read as under:
"Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; [and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any women to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid]."
23. Kidnapping from lawful guardianship has been defined under Section 361 of Indian Penal Code as under:
"Whoever takes or entices any minor under sixteen Page no. 13 / 17 State Vs. Jeetu @ Jitender SC No. 13/14 FIR No. 05/13 PS: Chhawla years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship."
24. In the case in hand, it is the stand of the prosecution that prosecutrix/victim namely Aarti was a minor, below 18 years of age on the date of commission of offence i.e. 04.01.2013. In the charge framed against the accused, the age of minor has been mentioned about 14 years as on the date of commission of offence. In his deposition, PW1, father of Aarti, has stated her age to be 16 years. PW3, mother of prosecutrix Aarti, has stated that at the time of incident, her daughter might be aged about 14 years. Prosecutrix herself has stated that she does not know her exact date of birth while at the time of recording her particulars, she has stated her age as 16 years. Prosecution has proved identity card and school living certificate of Aarti as Ex.PW1/B and Ex.PW1/C which contain the date of birth of prosecutrix Aarti as 12.11.1999. Prosecutrix in her statement given to Ld. Magistrate under Section 164 Cr.P.C., has stated her date of birth as 22.11.1996.
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25. In the case in hand, it is not material that whether on the date of commission under offence, the age of prosecutrix Aarti was 14 years or 16 years. Only material is whether on the date of commission of alleged offence, she was below the age of 18 years or not. In view of above mentioned oral as well as documentary evidences, it cannot be said that the age of prosecutrix Aarti, on the date of commission of alleged offence, was not below the age of 18 years. Hence, it is held that prosecution has been able to establish on record that on the date of commission of alleged offence, prosecutrix/victim Aarti was below the age of 18 years which is one of the basic ingredients of the offences under Section 363 and 366 IPC.
26. Accused has been charged that he kidnapped prosecutrix with intent to compel her to marry with him. On the point of marriage there is no sufficient evidence to prove the fact of marriage or intention of accused to marry with prosecutrix Aarti by force or otherwise. Prosecutrix/PW3 Aarti on this point has turned hostile and during her crossexamination by Ld. Public Prosecutor, she had denied the suggestions that on 04.01.2013 she was induced by the accused Jeetu to go with him and he married with her in temple at Najafgarh. PW3/ Mother of the prosecutrix has also turned hostile and denied the suggestion put by Ld. Addl. P.P. for the State that accused and Page no. 15 / 17 State Vs. Jeetu @ Jitender SC No. 13/14 FIR No. 05/13 PS: Chhawla her daughter married in temple. PW1/Father of prosecutrix has deposed that he came to know that his daughter and accused had married. He has not disclosed the source of this knowledge. Since, prosecutrix has denied the factum of marriage or intention of accused to marry her and parents of prosecutrix have not witnessed the alleged marriage, hence, factum of marriage or intention of marriage remain unproved. Hence, commission of offence under Section 366 IPC is not proved against the accused.
27. In so far as commission of offence under Section 363 IPC is concerned, one of the basic ingredients of this offence is that the minor victim should be taken away or enticed out of keeping of the lawful guardian. On this point, PW2/prosecutrix Aarti has stated that on 04.01.2013 at about 3.00 p.m., without disclosing to anyone of her family, she alongwith accused went from her house to Sai Baba Mandir, Najafgarh, New Delhi and thereafter, they returned to their houses and thereafter, her parents called the police and handed over her and the accused to the police. In her crossexamination by Ld. Addl. P.P. for the State, she had denied the suggestion that on 04.01.2013 she was induced by the accused to go with him. In her statement, made under Section 164 Cr.P.C., prosecutrix Aarti has also stated that she and accused liked each other.
Page no. 16 / 17State Vs. Jeetu @ Jitender SC No. 13/14 FIR No. 05/13 PS: Chhawla PW2 has further deposed that from Mandir, she returned back to her home. PW1 and PW3, parents of PW2, have deposed that prosecutrix Aarti was found in the house of accused. PW10 Ct. Banwari Lal and PW11 I.O/SI Sandeep Kumar have deposed that accused and prosecutrix alongwith parents of prosecutrix met them at Deenpur Mor. In my opinion, recovery/finding of prosecutrix Aarti from the house of accused is very doubtful.
Deposition of material prosecution witnesses is not sufficient to remove doubts that prosecutrix Aarti was taken away or enticed out of keeping of guardianship of her parents by accused or she had gone from her house alongwith accused by her own choice.
28. In view of above scrutiny of evidences, it is hold that prosecution has been failed to prove the charges levelled against the accused beyond reasonable doubt. Hence accused is given benefit of doubts. Consequently, accused Jeetu @ Jitender is acquitted of the charges under Section 363/366 IPC. Announced in the Open Court on 22nd Day of April 2014 (Anil Kumar) ASJ05/ Dwarka Courts Delhi/22.04.2014 Page no. 17 / 17