Delhi District Court
The State vs Mohd Kalim S/O Mohd Chaddi on 26 May, 2014
D.O.D 26.5.2014 FIR no. 202/07
P.S South Rohini
u/s 363/366 A IPC.
IN THE COURT OF SH RAJESH KUMAR GOEL:
ADDITIONAL SESSION JUDGE -5 (NORTH),
ROHINI , DELHI
SESSION CASE NO. : 129/14
UID NO . : 02404R019312012
FIR no : 202/2007
P. S : South Rohini
u/s 363/366 A IPC
The State versus Mohd Kalim s/o Mohd Chaddi
R/O Village Etwa , P.O Partap Gunj,
(Chiloni) P.S Baghopr, Distt Supol,
Bihar .
Date of committal to session court : 30.07.2012
Date of argument : 26.05.2014
Date of order : 26.05.2014
JUDGMENT
1. Brief facts of the case are that during the year 2007, accused Mohd Kalim and prosecutrix 'R' ( name withheld) aged about 15-16 years were residing in the area of village Naharpur, Delhi and they were neighbors. On 26.2.2007, said prosecutrix 'R' was SC No. 21/14 State vs Mohd Kalim (Page 1 of 15 ) D.O.D 26.5.2014 FIR no. 202/07 P.S South Rohini u/s 363/366 A IPC.
found missing from her house. It was also revealed that accused Mohd Kalim, who was residing near the house of prosecutrix 'R' is also missing since the day when prosecutrix went missing. Smt Shakila Khatoon, mother of the prosecutrix, made a complaint to the police raising suspicion on the accused Mohd Kalim alleging that he has abducted her daughter.
2. On 08.3.2007, complainant alongwith police went to the village Etwa, District Supol, Bihar where prosecutrix was found residing in the house of the accused Mohd Kalim. Prosecutrix was recovered from there and was brought to Delhi . Her statement u/s 164 CrPC was got recorded before the ld MM. Later on accused Mohd Kalim was arrested and accused was chargesheeted for offence u/s 363/366 A IPC.
3. Vide order dated 19.12.2011, Ld MM took the cognizance of the offences and subsequently, since the offence u/s 366 A IPC was exclusively triable by the court of sessions, therefore , vide order dated SC No. 21/14 State vs Mohd Kalim (Page 2 of 15 ) D.O.D 26.5.2014 FIR no. 202/07 P.S South Rohini u/s 363/366 A IPC.
30.07.2012, case was committed to the court of sessions .
4. Vide order dated 6.8.2012, ld predecessor of this court decided the charge and accordingly, charges u/s 363/366 A IPC were framed against the accused to which he pleaded not guilty and claimed to be tried.
5. In order to prove its case, prosecution has examined as many as twelve witnesses.
6. PW1 Smt Shakila Khatoon is the complainant and mother of the prosecutrix 'R'. She lodged the missing complaint ExPW1/A and raised suspicion on the accused. She is also a witness to recovery of prosecutrix 'R' from village Itwa from the possession of the accused.
7. PW2 'R' is the prosecutrix herself . She deposed that at the time of incident she was 15-16 years of age and she was in love with the accused SC No. 21/14 State vs Mohd Kalim (Page 3 of 15 ) D.O.D 26.5.2014 FIR no. 202/07 P.S South Rohini u/s 363/366 A IPC.
and had gone willingly to the village of the accused and married with him. She has not disputed her recovery memo ExPW1/B and recording of her statement u/s 164 CrPC ExPW2/A before ld MM. She was cross examined by the ld APP for the state as well as by ld counsel for the accused.
8. PW3 Mohd Firoz is a public witness who is resident of village Itwa from where prosecutrix 'R' was recovered. He deposed that from the house of Mohd Kalim, one girl who is daughter of Shakila Khatoon was recovered and recovery memo ExPW1/B was prepared which bears his signatures at point C. He was cross examined by the ld counsel for the accused.
9. PW4 Dr. Deepti Bhalla is the witness who deposed that on 11.3.2007, one patient 'R' aged about 13 years, Female was brought for medical examination with alleged history, being sexually assaulted by the accused. She deposed that no obvious evidence of any fresh external injury over the SC No. 21/14 State vs Mohd Kalim (Page 4 of 15 ) D.O.D 26.5.2014 FIR no. 202/07 P.S South Rohini u/s 363/366 A IPC.
body of the patient was present. After examination, patient was referred to Sr. Resident Gyane for further examination and expert opinion. She further deposed that she also advised bone age X -ray for age determination. She prepared MLC of patient 'R' which is ExPW4/A.
10. PW5 Dr. Florence Almeida has examined accused Mohd Kalim and prepared MLC ExPW5/A .
11. PW6 Constable Sushil deposed that on 16.8.2011, he had joined investigation with ASI Surender Singh. Accused Mohd Kalim was arrested vide memo ExPW6/A and his personal search was taken vide memo ExPW6/B. Accused was taken to Dr. BSA Hospital and was medically examined.
12. PW7 HC Ram Parvesh is the witness who on 17.8.2011 was posted as duty constable in Dr. BSA Hospital from 8:00 am to 8:00 pm. He deposed that on that day accused Mohd Kalim was medically examined at BSA Hospital. He handed over one SC No. 21/14 State vs Mohd Kalim (Page 5 of 15 ) D.O.D 26.5.2014 FIR no. 202/07 P.S South Rohini u/s 363/366 A IPC.
sealed parcel sealed with the seal of SD alongwith sample seal to IO which was seized vide memo ExPW7/A.
13. PW8 Usha Rani is the witness who took the victim 'R' alongwith her mother to BSA hospital for her medical examination. Victim was examined by the doctor vide MLC 1153/07 ExPW4/A. Doctor handed over her a sealed parcel containing salwar and underwear of the victim which was sealed with the seal of SD which she handed over to the IO vide ExPW8/A.
14. PW9 Dr. Aruna Singh , medical officer DDU hospital deposed that on 17.4.2007, she examined X-ray plate no. 1384 of victim 'R'. After examining X- ray plates of clavical, X-ray shoulder, X-ray elbow, X- ray wrist and X-ray pelvis of patient , she opined that the bony age of 'R' was more than 15 years but less then 16 years. She gave detail report ExPW9/A in this regard.
SC No. 21/14 State vs Mohd Kalim (Page 6 of 15 )
D.O.D 26.5.2014 FIR no. 202/07
P.S South Rohini
u/s 363/366 A IPC.
15. PW10 Dr. Rajiv Ranjan, HOD Department of
Radiology , Dr. BSA Hospital deposed that a board was constituted under his chairmanship for determination of age of victim 'R'. On 24.4.2007, he gave his report ExPW10/A regarding the bone age of patient 'R' and opined that age of 'R' is more than 15 years but less then 16 years.
16. PW11 Sh Anil Kumar , ld ASJ, the then ld MM proved the statement ExPW2/A of the prosecutrix 'R' recorded u/s 164 CrPC .
17. PW12 ASI Surender Singh is the IO of the present case who carried out the investigation .
18. Thereafter, PE was closed and statement of accused u/s 313 Cr. PC was recorded . Accused has denied the allegations . However he did not opt to lead any evidence in his defence.
19. I have heard the ld Addl. P P for the state and the ld counsel for the accused . I have also SC No. 21/14 State vs Mohd Kalim (Page 7 of 15 ) D.O.D 26.5.2014 FIR no. 202/07 P.S South Rohini u/s 363/366 A IPC.
perused the record very carefully.
20. Accused is facing trial for the offence u/s 363 and 366 A IPC. As far as section 366 A IPC is concerned, the same is not applicable to the given facts and circumstances of the present case.
21. The question is of applicability of Section 366A IPC. In order to attract Section 366A IPC, essential ingredients are (1) that the accused induced a girl; (2) that the person induced was a girl under the age of eighteen years; (3) that the accused has induced her with intent that she may be or knowing that it is likely that she will be forced or seduced to illicit intercourse; (4) such intercourse must be with a person other than the accused; (5) that the inducement caused the girl to go from any place or to do any act.
22. In the instant case, it has come on the record that prosecutrix 'R' was not forced to sexual intercourse. None of the prosecution witness has deposed so . There is no evidence at all in this regard. Since the essential ingredient that the SC No. 21/14 State vs Mohd Kalim (Page 8 of 15 ) D.O.D 26.5.2014 FIR no. 202/07 P.S South Rohini u/s 363/366 A IPC.
intercourse must be with a person other than the accused has not been established, Section 366A has no application(Iqbal vs state of Kerala AIR 2008 SC 288 )
23. Now we advert to the section 363 IPC.
Section 361 , IPC reads :
"361. Kidnapping from lawful guardianship. - Whoever takes or entices any minor under sixteen 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.
Explanation. - The words 'lawful guardian' in this section include any person lawfully entrusted with the care of custody of such minor or other person.
Exception- This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to lawful custody of such child, unless such act is committed for an immoral or unlawful purpose."
24. The object of this section seems as much to protect the minor children from being seduced for SC No. 21/14 State vs Mohd Kalim (Page 9 of 15 ) D.O.D 26.5.2014 FIR no. 202/07 P.S South Rohini u/s 363/366 A IPC.
improper purposes as to protect the rights and privileges of guardians having the lawful charge or custody of their minor wards. The gravamen of this offence lies in the taking or enticing of a minor under the ages specified in this section, out of the keeping of the lawful guardian without the consent of such guardian. The words "takes or entices any minor ..... out of the keeping of the lawful guardian of such minor" in Section 361, are significant. The use of the word "Keeping" in the context connotes the idea of charge, protection, maintenance and control; further the guardian's charge and control appears to be compatible with the independence of action and movement in the minor, the guardian's protection and control of the minor being available, whenever necessity arises.
25. On plain reading of this section the consent of the minor who is taken or enticed is wholly immaterial : it is only the guardian's consent which takes the case out of its purview. Nor is it necessary that the taking or enticing must be shown to have SC No. 21/14 State vs Mohd Kalim (Page 10 of 15 ) D.O.D 26.5.2014 FIR no. 202/07 P.S South Rohini u/s 363/366 A IPC.
been by means of force or fraud. Persuasion by the accused person which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardian would be sufficient to attract the Section.
26. Thus the essential ingredients of the offence are taking or enticing any minor 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. The words taking or enticing have been interpreted by the Hon'ble Supreme Court to mean "to cause to go", "to escort" or "to get into possession" in Thakorlal D. Vadgama Vs. The State of Gujarat (1973) 2 SCC 413. Thus, taking away would not only include moving forward or backward but also taking into possession the physical body of the minor or person of unsound mind.
27. In the present case, it is not in dispute that prosecutrix 'R' was recovered from the possession of SC No. 21/14 State vs Mohd Kalim (Page 11 of 15 ) D.O.D 26.5.2014 FIR no. 202/07 P.S South Rohini u/s 363/366 A IPC.
the accused from village Itwa, Bihar vide recovery memo ExPW1/B.
28. Even during the statement recorded u/s 313 CrPC , accused has not denied the aforesaid fact. The only stand taken by the accused is that prosecutrix has gone with him willingly and he has not pressurized her. Prosecutrix 'R' appeared in the witness box and she was examined as PW2. She deposed that at the time of incident she was aged about 15 years and fall in love with accused and she willingly had gone with accused to his village. This testimony has not been disputed by the accused even during the cross examination of the prosecutrix. Rather cross examination of this witness shows that accused is admitting that he had married with the prosecutrix but it was done with the consent of the prosecutrix 'R' .
29. As per the contention of the ld counsel for the accused, prosecutrix 'R'was major and that's why married with her. On the contrary it is the case of the SC No. 21/14 State vs Mohd Kalim (Page 12 of 15 ) D.O.D 26.5.2014 FIR no. 202/07 P.S South Rohini u/s 363/366 A IPC.
prosecution that on the date of incident i.e 26.2.2007, prosecutrix was minor.
30. In order to prove the same, prosecution has examined PW9 Dr. Aruna Singh , medical officer DDU hospital and PW10 Dr. Rajiv Ranjan , HOD Department of Radiology , Dr. BSA Hospital. PW9 Dr. Aruna Singh deposed that on 17.4.2007, she examined X-ray plate no. 1384 of victim 'R'. After examining X-ray plates of clavical, X-ray shoulder, X- ray elbow, X-ray wrist and X-ray pelvis of patient , she opined that the bony age of 'R' was more than 15 years but less then 16 years and detail report in this regard is ExPW9/A .
31. PW10 Dr. Rajiv Ranjan deposed that a board was constituted under his chairmanship for determination of age of victim 'R'. On 24.4.2007, he gave his report ExPW10/A regarding the bone age of patient 'R' and as per report the bone age of patient 'R' was determined as more than 15 years but less than 16 years.
SC No. 21/14 State vs Mohd Kalim (Page 13 of 15 )
D.O.D 26.5.2014 FIR no. 202/07
P.S South Rohini
u/s 363/366 A IPC.
32. These witnesses have not been cross examined on material points . They have categorically stated that the age of the prosecutrix 'R' is more than 15 years but less then 16 years on the date of examination i.e 24.4.2007. Incident took place on 26.2.2007. From these facts it is crystal clear that on the date of occurrence , prosecutrix 'R' was minor i.e below the age of 18 years.
33. Even if she had given consent to marry accused, there was no occassion for the accused to take her with him knowingly well that she is minor. In such type of cases when a girl of aged below 16 years was taken or enticed then the consent of such minor is immaterial. Accordingly, the ingredients of section 363 IPC stands proved.
34. In the light of aforesaid discussion, Court is of the view that prosecution has been successful in establishing the guilt of the accused in respect of offence u/s 363 IPC but failed to prove SC No. 21/14 State vs Mohd Kalim (Page 14 of 15 ) D.O.D 26.5.2014 FIR no. 202/07 P.S South Rohini u/s 363/366 A IPC.
the case for the offence u/s 366 A IPC. Accordingly, accused Mohd Kalim stands acquitted for offence u/s 366 A IPC but stands convicted for offence u/s 363 IPC.
Announced in the open (Rajesh Kumar Goel) Court today i.e 26.5.2014 ASJ-5, North Rohini Court SC No. 21/14 State vs Mohd Kalim (Page 15 of 15 )