Delhi District Court
State vs . 1. Satbir, on 11 November, 2021
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IN THE COURT OF SHRI PITAMBER DUTT
ASJ-02, DWARKA DISTRICT COURTS, DELHI.
In the matter of:
State Vs. 1. Satbir,
S/o Sh. Devi Singh,
R/o 32-34, Nirmal Vihar,
Nangloi Road, Najafgarh,
New Delhi.
2. Ramwati,
W/o Sh. Rajender,
R/o E-63, Gali No. 4,
Roshan Vihar, Najafgarh,
New Delhi.
3. Ravinder @ Bachichi,
S/o Sh. Rajender,
R/o E-63, Gali No. 4,
Roshan Vihar, Najafgarh,
New Delhi.
CNR No. : DLSW01-001166-2014.
Registration No. of the Case : SC/440900/2016.
Court Institution Number : SC/89/2015.
FIR Number : 371/2013.
PS : Chhawla.
Under Section : 120B/366 r/w/s 120B/506 IPC.
Date of Institution : 04.01.2014.
Case committed to the Court
of Sessions for : 24.01.2014.
Case reserved for Judgment on : 26.10.2021.
FIR No. 371/13. Page No. 1 of 28.
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Judgment announced on : 11.11.2021.
Final Order : Acquitted.
JUDGMENT
1. Vide this judgment, I shall decide the case bearing FIR No. 371/13 of PS Chhawla, u/s 120B/366 r/w/s 120B and 506 IPC registered against accused persons namely Satbir, Ramwati and Ravinder @ Bachchi. The brief facts necessitated in registration of this case, as per the prosecution are given as under: -
Brief Facts
2. The present FIR was registered on the complaint of Hukam Singh, who stated that her daughter, who was studying in 9th class in GGSS School, had left home at about 6.30 am for school. She left her tiffin at home, therefore, he sent his elder son Pushpender for giving tiffin to her, his daughter had not reached at her school. They searched for her, but of no avail. On that basis, FIR u/s 363 IPC was registered.
3. During the investigation, complainant informed to the IO that one Bachchi, who was residing in their vicinity, informed him that one Satbir alongwith Shyam Singh had taken her daughter to somewhere in UP. The complainant doubted that his daughter was kidnapped by Satbir, Bachchi, Pankaj and Shyam Singh. On 27.09.2013, on receiving information from the brother of accused Satbir namely Sunil, IO, Const. Suman, complainant FIR No. 371/13. Page No. 2 of 28.
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and Sunil reached at PS Kotwali, Haridwar, where victim was found. SSI Naveen Chander Jural informed the IO that victim was found with accused Satbir in FIR No. 241/13 of PS Kotwali, Haridwar, u/s 411 IPC. She was medically examined vide MLC No. 5864/13 Ex.PW5/A in RTRM Hospital.
4. Victim was got admitted in Nirmal Chhaya. Her statement u/s 164 CrPC was got recorded on 29.10.2013. Accused persons Satbir, Ramwati and Ravinder @ Bachchi were arrested and their disclosure statements were recorded.
5. After completion of the investigation, charge-sheet was filed before the Court of Ld. MM, who took the cognizance vide order dated 04.01.2014 and after complying with the provisions of Section 207 CrPC, the case was committed to the Court of Sessions u/s 209 CrPC.
6. On the basis of the material produced by the prosecution, the Ld. Predecessor of this Court vide order dated 28.01.2014, framed charges u/s 120B and 366 IPC against all three accused persons and u/s 506 IPC against accused Ravinder @ Bachchi, which were explained to them, to which they all pleaded not guilty and claimed trial.
7. In order to prove the charges, prosecution has examined 18 witnesses.
* PW1 is prosecutrix/victim, who informed about FIR No. 371/13. Page No. 3 of 28.
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the incident happened with her. She proved her statement recorded u/s 164 CrPC Ex.PW1/A. * PW2 Hukam Singh is complainant/father of victim. He proved his complaint Ex.PW2/A, arrest memos Ex.PW2/B and Ex.PW2/C, personal search memos Ex.PW2/D and Ex.PW2/E, disclosure statements Ex.PW2/F and Ex.PW2/G. * PW3 Const. Anita, she got prosecutrix/victim medically examined vide MLC No. 5864/13. She also proved exhibits seized by the IO in her presence vide memo Ex.PW3/A. * PW4 HC Saroj deposed that on 24.10.2013, at about 4.10 pm, she received rukka Ex.PW4/A from SI Rajesh Kumar, on the basis of which, she got recorded FIR Ex.PW4/B of present case through HC Rajbir, Computer Operator.
* PW5 Dr. Siddhi Sainik, who medically examined the prosecutrix/victim on 27.10.2013 vide MLC Ex.PW5/A. * PW6 Kamla, mother of minor, deposed about the present case.
* PW7 Sh. Gaurav Gupta, the then Ld. MM,
FIR No. 371/13. Page No. 4 of 28.
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Dwarka Courts, New Delhi, he proved the statement u/s 164 CrPC dated 29.10.2013 as Ex.PW7/A. * PW8 Dr. Rakesh Kumar deposed that on 31.10.2013, prosecutrix/victim was medically examined by him vide MLC No. 5917/13 Ex.PW8/A. * PW9 Anita Gupta produced school record of minor/victim. She proved authorization in her favour Ex.PW9/A, admission form of prosecutrix/victim Ex.PW9/B, school leaving certificate of prosecutrix/victim Ex.PW9/C and admission register bearing serial no. 13215 Ex.PW9/D. * PW10 Dr. L.R. Richhele deposed that on 27.10.2013, he examined x-ray plate Ex.PW10/B of prosecutrix/victim and after examination of the same, prepared report Ex.PW10/A. * PW11 Const. Manju deposed that on 29.10.2013, she alongwith SI Rajesh Kumar got recorded statement u/s 164 CrPC of prosecutrix/victim.
* PW12 Ms. Rachna Srivastava deposed that on 28.10.2013, she was posted as Member of CWC-VII and proved report Ex.PW12/A. * PW13 Const. Lodhi Ram deposed that on FIR No. 371/13. Page No. 5 of 28.
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02.12.2013, he deposited the exhibits of this case in FSL, Rohini, vide RC No. 132/21.
* PW14, HC Mamta deposed that on 28.10.2013, she alongwith SI Rajesh reached Dwarka Courts for statement of victim u/s 164 CrPC.
* PW15 Const. Praveen Kumar.
* PW16 Const. Suman deposed that on 26.10.2013,
she alongwith IO SI Rajesh and complainant reached at Haridwar, where prosecutrix/victim was found present at PS Kotwali.
* PW17 Sr. Sub Inspector Naveen Chand Jural deposed that on 26.10.2013, at about 4.00 pm, a car bearing registration no. DL1CL7927 was stopped and on checking, victim was found present therein. Thereafter, accused Satbir was arrested in proceedings Nil/13 Ex.PW17/A. * PW18 SI Rajesh Kumar is the IO of this case, who deposed about the investigation carried out by him in this case. He proved his endorsement Ex.PW18/A, arrest memo Ex.PW18/B and disclosure statement Ex.PW18/C of accused Satbir.
8. After completion of prosecution evidence, all the FIR No. 371/13. Page No. 6 of 28.
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incriminating material was put to accused person in their statement u/s 313 CrPC. All the accused persons have denied the allegations and opted not to lead any defence evidence.
9. Sh. Pramod Kumar, ld. Additional PP for State argued that accused persons had hatched a criminal conspiracy to kidnap prosecutrix/victim to compel/force her to marry with accused Ravinder @ Bachichi. He further contended that prosecution has duly proved its case beyond reasonable doubt. He further argued that prosecutrix/victim was recovered with accused Satbir at Haridwar. He argued that prosecution has proved all the charges against accused persons beyond any doubt. He prayed that accused persons may be convicted.
10. Sh. L.S. Gautam, ld. LAC for accused persons has argued that prosecution has failed to prove its case against accused persons. He further submitted that prosecutrix/victim herself went to Haridwar alongwith accused Satbir. He further argued that prosecution has not placed any proof on record to establish the guilt of accused persons. He prayed that accused persons may be acquitted in this case.
11. I have heard Sh. Pramod Kumar, ld. Additional PP for State, Sh. L.S. Gautam, ld. LAC for all accused persons. I have also perused the charge-sheet, evidence recorded in the Court and other material placed on record. Perusal of the above shows that prosecution has claimed that all the accused persons had hatched a criminal conspiracy to kidnap minor to compel her to marry FIR No. 371/13. Page No. 7 of 28.
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accused Ravinder @ Bachchi.
12. From the perusal of charges, following points of determination arises for consideration: -
(i) Whether accused persons have hatched a criminal conspiracy to kidnap victim from the lawful guardianship of her parents with the intention to compel/force her to marry accused Ravinder @ Bachchi?
(ii) Whether accused persons, in furtherance of their criminal conspiracy, kidnapped prosecutrix/minor to compel/force her to marry with accused Ravinder @ Bachichi? and
(iii) Whether accused Ravinder @ Bachichi committed an offence of criminal intimidation by giving threat to prosecutrix/minor for dire consequences to her brother?
13. Let me deal with these points of determination, one by one.
(i) Whether accused persons have hatched a criminal conspiracy to kidnap victim from the lawful guardianship of her parents with the intention to compel/force her to marry accused Ravinder @ Bachchi?
14. The prosecution has claimed that all the accused persons had hatched a criminal conspiracy to kidnap prosecutrix/minor to FIR No. 371/13. Page No. 8 of 28.
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compel her to marry with accused Ravinder @ Bachichi.
15. Criminal conspiracy has been defined in Section 120A IPC and its punishment is prescribed in Section 120B IPC. Section 120A and 120B IPC are reproduced herein below: -
"120A. Definition of criminal conspiracy. - When two or more persons agree to do, or cause to be done, -
(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof."
"120B. Punishment of criminal conspiracy. -
(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, (imprisonment for life) or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both."
16. The most important ingredient of the offence of criminal conspiracy, is an agreement between two or more persons to do FIR No. 371/13. Page No. 9 of 28.
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an illegal act. In a case where criminal conspiracy is alleged, the Court must inquire whether two persons are independently pursuing the same end, or they have come together to pursue the unlawful object. The former does not render them conspirators, but the latter does. For the offence of conspiracy some kind of physical manifestation of agreement is required to be established.
17. In order to prove the charge of criminal conspiracy against accused persons, prosecution has mainly relied upon the testimony of prosecutrix i.e. PW1. She has briefly deposed in her examination that in the year 2013, she was studying in 9th class. She came into contact of accused Satbir and Ravinder @ Bachichi through her friend namely Sunita, who was also studying with her in the same class. Accused Ravinder @ Bachichi used to drop her friend Sunita to school on his motorcycle. Her friend Sunita told her that accused Ravinder @ Bachichi is her cousin, but later, she came to know that accused Ravinder @ Bachichi was her friend.
18. PW1 has further deposed that whenever her friend Sunita used to go with accused Ravinder @ Bachichi for 3-4 days outing, her friend Sunita used to say her that she must tell her parents that she had gone on a picnic from school and in the school, she should tell that she (Sunita) is ill/not feeling well. She has further deposed that accused Ramwati (mother of accused Ravinder @ Bachichi) used to tell her that her friend Sunita is her "bahu" (daughter in law) (wife of accused Ravinder @ Bachichi) and for that reason, she used to help her friend FIR No. 371/13. Page No. 10 of 28.
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Sunita. She has further deposed that in the month of August 2013, accused Ramwati called her at her house and asked her to go to Haridwar with accused Ravinder @ Bachichi and Sunita. Thereafter, she alongwith accused Satbir and one other person namely Chotu, went to Haridwar. There they were caught by the officials of Haridwar police, who informed her parents and officials of Delhi police.
19. During cross examination, PW1 briefly deposed that on 24.10.2013 at about 5.20 am, when she had gone to Haridwar, she was not in her school uniform. She had not taken her school bag or any money or any other article from her house. She has further deposed that none of them were having any mobile phone. She admitted that she accompanied accused Satbir to Haridwar on her own and he had not induced or pressurized her in any way. She volunteered that accused Ravinder @ Bachichi had pressurized her on 16.08.2013 at about 4.00-5.00 pm, when she had visited the house of accused Ravinder @ Bachichi, he had pressurized her to accompany him and Sunita to Haridwar. She further deposed that accused Ramwati had not pressurized or induced her for going with accused Satbir to Haridwar.
20. The prosecution has claimed that all the accused persons had hatched a criminal conspiracy to kidnap the prosecutrix to compel her to marry accused Ravinder @ Bachichi. The prosecutrix had also stated in her statement recorded by Ld. MM u/s 164 CrPC Ex.PW1/A that she went to Haridwar with accused Satbir on the asking of accused Ravinder @ Bachichi and FIR No. 371/13. Page No. 11 of 28.
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Ramwati. She had also stated in her statement u/s 164 CrPC that accused Ramwati also told her that her marriage is to be solemnized with accused Ravinder @ Bachichi, but she refused.
21. The prosecutrix in her testimony recorded before the Court has not deposed a word that accused Ramwati or any other accused ever told her to get marry with accused Ravinder @ Bachichi. On the contrary, PW1 in her examination in chief itself has stated that her friend Sunita was having relations with accused Ravinder @ Bachichi and accused Ramwati used to tell her that Sunita was her "bahu" (daughter in law) (wife of accused Ravinder @ Bachichi).
22. The said testimony of prosecutrix made by her in her examination in chief demolished the case of the prosecution that accused persons hatched a criminal conspiracy to kidnap the prosecutrix to compel her to marry with accused Ravinder @ Bachichi. The prosecutrix has not deposed a word in her examination recorded before the Court that any of the accused persons had ever compelled her to marry accused Ravinder @ Bachichi.
23. PW1 prosecutrix/victim in her examination before the Court has deposed that accused Ravinder @ Bachichi had compelled her to accompany him and Sunita to Haridwar. Thus, as per her own statement, accused Ravinder @ Bachichi had pressurized her to accompany him and Sunita to Haridwar. Thus same cannot be construed that accused Ravinder @ Bachichi FIR No. 371/13. Page No. 12 of 28.
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forced/compelled the prosecutrix to marry him. PW1 has not deposed even a word that accused Ravinder @ Bachichi ever compelled her to get marry with him.
24. The prosecutrix during her cross examination has even stated that she had accompanied accused Satbir to Haridwar on her own and he had not pressurized her in any manner. She has further deposed that accused Ramwati had also not pressurized her to go to Haridwar with accused Satbir.
25. The said testimony of PW1 made by her during her cross examination falsify the claim of the prosecution that accused persons had hatched a criminal conspiracy to kidnap the prosecutrix/minor to compel her to marry accused Ravinder @ Bachichi.
26. The prosecution has also examined PW2 Hukam Singh, father of the victim, who deposed in his examination in chief that on 24.10.2013, he was informed by one Ravinder @ Bachichi residing in the same locality, where he is residing that his daughter had been kidnapped by accused Satbir with the connivance of Shyam Singh and they both had taken her to Uttar Pradesh.
27. If accused Ravinder @ Bachichi had hatched a criminal conspiracy to kidnap the prosecutrix with other accused persons, as alleged by the prosecution, then he would not have informed the father of the prosecutrix about the said fact. The conduct of FIR No. 371/13. Page No. 13 of 28.
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accused Ravinder @ Bachichi informing the father of the prosecutrix on the same day that victim had gone to Uttar Pradesh with accused Satbir, itself shows that accused Ravinder @ Bachichi was not the part of any criminal conspiracy hatched to kidnap the prosecutrix as alleged by the prosecution.
28. The prosecution has not produced on record even an iota of evidence to prove that accused persons had hatched any criminal conspiracy to kidnap the prosecutrix/minor to compel her to marry accused Ravinder @ Bachichi.
29. The prosecution has thus failed to prove on record beyond reasonable doubt that accused persons had hatched a criminal conspiracy to kidnap the prosecutrix from the lawful guardianship of her parents with the intention to compel/force her to marry accused Ravinder @ Bachichi.
(ii) Whether accused persons, in furtherance of their criminal conspiracy, kidnapped prosecutrix/minor to compel/force her to marry with accused Ravinder @ Bachichi?
30. The prosecution has claimed that accused persons had kidnapped the prosecutrix/minor with the intention to compel/force her to marry accused Ravinder @ Bachichi.
31. Kidnapping has been defined in Section 361 IPC, whereas, kidnapping, abducting or inducing woman to compel her for marriage, etc. is defined in Section 366 IPC. It would be FIR No. 371/13. Page No. 14 of 28.
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beneficial to reproduce Sections 361 and 366 IPC, which reads as under: -
"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."
"366. Kidnapping, abducting or inducing woman to compel her marriage, etc. - 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 woman 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)."
32. A perusal of Section 361 IPC shows that it is necessary that there be an act of enticing or taking in addition to establishing the child's minority (being 16 years of age for boys and 18 years of age for girls) and care/keep of a lawful guardian. Such "enticement" need not be immediate in time and can also be through subtle action like winning over the affection of a minor girl. However, mere recovery of missing minor from the custody of an accused would not ipso facto establish the offence of kidnapping.
FIR No. 371/13. Page No. 15 of 28.
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33. The prosecution has claimed that
prosecutrix/minor/victim was kidnapped from the keeping of her lawful guardianship with the intention to compel/force her to marry with accused Ravinder @ Bachichi.
34. The first question needs to be examined is whether the prosecutrix was the minor on the day of commission of offence?
35. To establish the said fact, prosecution has examined PW2 Hukam Singh, who has deposed in her examination in chief that he has two sons namely Pushpender, aged 18 years, and Sumit, aged 11 years, and one daughter i.e. prosecutrix, aged 14 years. His daughter is staying in 9th class in Government Girl Sr. Secondary School, Najafgarh, Delhi.
36. The defence has carried out thorough cross examination of PW2, but his above deposition that age of prosecutrix is 14 years has not been disputed by the defence as no contrary suggestion was given to PW2 in this regard.
37. The prosecution has also examined PW9 Anita Gupta, TGT (Hindi), Government Girls Sr. Secondary School, Najafgarh. The said witness has deposed that as per their official record, prosecutrix was admitted in their school in class 6B on 27.03.2010. Her date of birth is mentioned as 01.04.2000 in her school admission form. She has proved admission form as Ex.PW9/B and school leaving certificate of victim as Ex.PW9/C. FIR No. 371/13. Page No. 16 of 28.
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38. The prosecution has also examined PW10 Dr. L.R. Richhele, Consultant Radiology, RTRM Hospital, Delhi, who has examined x-ray plates of prosecutrix referred by Dr. Arunima and Dr. Ranjan for determination of bone age of prosecutrix and prepared detailed report Ex.PW10/A.
39. The report Ex.PW10/A stipulates that as per bone structure of the prosecutrix, her age was around 16-17 years.
40. The oral and documentary evidence adduced on record shows that age of the victim at the time of commission of offence was around 13-14 years and as per the medical evidence, the age of the prosecutrix was between 16-17 years on the day of commission of offence. Thus, victim was minor i.e. less than 18 years of age at the time of commission of offence.
41. The defence has sought to take a plea that prosecutrix was above 18 years of age on the day of commission of offence, but nothing has been brought on record by the defence to support the said plea.
42. The prosecution has placed sufficient material on record to prove that prosecutrix was between 13 to 17 years of age i.e. less than 18 years, at the time of commission of offence. The prosecution has thus proved beyond reasonable doubt that prosecutrix was minor on the date of commission of the offence.
FIR No. 371/13. Page No. 17 of 28.
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43. The next question is whether the prosecutrix/minor was removed by accused persons from the keeping of her lawful guardianship to compel her to marry accused Ravinder @ Bachichi as claimed by the prosecution?
44. To establish the said fact, prosecution has mainly relied upon the testimony of PW1 and PW2. PW1 in her statement recorded u/s 164 CrPC Ex.PW1/A, stated that she went to Haridwar with accused Satbir on the asking of accused Ravinder @ Bachichi. She has further stated in her statement recorded u/s 164 CrPC that in the morning of 24.10.2013, accused Ramwati told her that she and accused Ravinder @ Bachichi would meet her directly at Haridwar, therefore, prosecutrix went to Haridwar with accused Satbir and she made many telephonic call to accused Ramwati, but her phone was switched off and when accused Ramwati and accused Ravinder @ Bachichi were not met them at Haridwar, then accused Satbir told her to get back to Delhi, but they were caught by Haridwar police. She has further stated in her statement recorded u/s 164 CrPC that accused Satbir did not know that she left her house without informing her parents. Accused Satbir had also not committed any act forcibly with her.
45. The prosecutrix has thus claimed in her statement recorded u/s 164 CrPC that she went to Haridwar alongwith accused Satbir on the asking of accused Ravinder @ Bachichi and accused Ramwati.
FIR No. 371/13. Page No. 18 of 28.
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46. The prosecutrix has sought to take a different plea in her statement before the Court. She deposed that accused Ravinder @ Bachichi was having affairs with her friend Sunita and accused Ramwati used to tell Sunita as her "bahu" (daughter in law). She has also deposed before the Court that accused Ravinder @ Bachichi was compelling her to accompany him and Sunita to Haridwar, but she has not averred a word that accused Ravinder @ Bachichi and accused Ramwati ever told her to go to Haridwar with accused Satbir or that they would meet her at Haridwar.
47. The prosecutrix has admitted in her cross examination that she accompanied accused Satbir to Haridwar on her own and he had not induced or pressurized her in any manner. She has also admitted that accused Ramwati had also not pressurized or induced her to go to Haridwar with accused Satbir.
48. The prosecutrix has also deposed during her cross examination that on 24.10.2013, when she had gone to Haridwar, she was not in her school uniform, she had not taken her school bag, she had not taken any money from home. She has further deposed that she had not informed anybody at her home about the fact that she was going to Haridwar. She has further deposed that none of them were having mobile phone.
49. Thus, as per prosecutrix/victim, she left her house all alone without giving any information to anyone and when she left her home in the morning of 24.10.2013, she was not in her FIR No. 371/13. Page No. 19 of 28.
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school uniform, whereas, PW2 Hukam Singh and PW6 Kamla i.e. parents of prosecutrix, have deposed that prosecutrix had left her home at about 6.30 am for her school.
50. The testimony of PW2 and PW6 that their daughter went to school at about 6.30 am on 24.10.2013 is thus contrary to the deposition of PW1, who stated that she was not in her school uniform and left her house on 24.10.2013 at about 5.20 am.
51. Even the police official i.e. PW17 Sr. SI Naveen Chand Jural, Civil Police, Kotwali New Tehri, Uttrakhand, who apprehended the prosecutrix and accused Satbir at Haridwar deposed that prosecutrix was not in school uniform.
52. The material placed on record shows that the prosecutrix was though minor on the date of commission of offence, but as per her own deposition, she left her house on her own at about 5.20 am with accused Satbir. Neither accused Satbir nor accused Ramwati had pressurized prosecutrix or induced her to go with accused Satbir to Haridwar.
53. The prosecution has claimed that prosecutrix was kidnapped by accused persons to compel her to marry accused Ravinder @ Bachichi. However, PW2 has deposed in her examination in chief that on 26.10.2013 at about 10.00 pm, he was telephonically informed by the bhabhi (sister in law) of accused Satbir that accused Satbir had telephonically informed her that he was going to marry a girl at Har Ki Pauri, Haridwar, FIR No. 371/13. Page No. 20 of 28.
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whom he had brought from Delhi.
54. Thus, as per PW2, he was informed by the bhabhi (sister in law) of accused Satbir that accused Satbir had taken one girl to Haridwar for getting marrying with her. The prosecution, however, has neither cited the bhabhi (sister in law) of accused Satbir as a witness nor examined her nor produced any other material on record to prove that any such telephonic call was made by the bhabhi (sister in law) of accused Satbir to PW2 on 26.10.2013.
55. To constitute an offence of kidnapping as prescribed u/s 361 IPC, one of the condition is that accused takes or entice any minor out of the keeping of lawful guardianship of such minor without the consent of such guardian.
56. In the instant case, prosecutrix was undoubtedly below 18 years of age on the date of commission of offence, but as per her own deposition, she left her house in the morning of 24.10.2013 with accused Satbir without any inducement or pressure.
57. The Hon'ble Supreme Court of India in "State of Haryana Vs. Raja Ram" reported as AIR 1973 SC 819, has held that "there is no doubt a distinction between taking and allowing a minor to accompany a person. Thus, if the minor herself leaves her father's house without any inducement by the accused, who merely allows her to accompany him, he cannot be said to have taken her out of the keeping of her father".
FIR No. 371/13. Page No. 21 of 28.
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58. The Hon'ble Supreme Court of India in "Thakoral D. Vadgama Vs. The State of Gujarat" reported as AIR 1973 SC 2313, has held as under: -
"The expression used in Section 361 IPC is 'Whoever takes or entices any minor'. The words 'takes' does not necessarily cannot taking by force and it is not confined only to use of force, actual or constructive. This words merely, means, 'to cause to go', 'to escort' or 'to get into possession'. No doubt, it does not mean physical taking, but not necessarily by use of force or fraud. The words 'entice' seems to involve the idea of inducement or allurement by giving rise to hope or desire in the other. This can take many forms, difficult to visualise and describe exhaustively, some of them may be quite subtle depending for their success on the mental state of the person at the time when the inducement is intended to operate. This may work immediately or it may create continuous and gradual but imperceptible impression culminating after some time, in achieving the ultimate purpose of successful inducement. The two words 'takes' and 'entices' as used in Section 361 IPC are in our opinion, intended to be read together so that each takes to some extent its colour and content from the other. The statutory language suggests that if the minor leaves her parental home completely uninfluenced by any promise, offer or inducement emanating from the guilty party, then the latter cannot be considered to have committed the offence as defined in Section 361 IPC. But if the guilty party has laid a foundation by inducement, allurement or threat etc. and if this can be considered to have influenced the minor or weighed with her in leaving her guardian's custody or keeping and going to the guilty party, then prima facie it would be difficult for him to plead innocence on the ground that the minor had voluntarily come to him. If he had at an earlier stage solicited or induced her in any manner to leave her father's protection, by conveying or indicating an FIR No. 371/13. Page No. 22 of 28.
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encouraging suggestion that he would give her shelter, then the mere circumstance that his act was not the immediate cause of her leaving her parental home or guardian's custody would constitute no valid defense and would not absolve him. The question truly falls for determination on the facts and circumstances of each case."
59. The Hon'ble Supreme Court of India in another judgment titled as "Arvind Vs. State of Gujarat" reported as (2019) 11 SCC 617, was pleased to hold as under: -
"4. On merits, it is apparent that the victim, in her deposition has stated that she has voluntarily gone with the appellant and she has not been taken away from the custody of her parents. Therefore, in our opinion, no case u/s 363 IPC was made out."
60. The above legal preposition makes it clear that to hold an accused guilty for kidnapping, the prosecution is required to prove that accused has taken or enticed the minor to take her out of the keeping of her lawful guardian. Merely that minor was found in a company of an accused, is not sufficient to hold the accused guilty for commission of offence of kidnapping.
61. The prosecution has claimed that all the accused persons kidnapped the prosecutrix to compel her to marry accused Ravinder @ Bachichi, however, prosecution has not placed on record an iota of proof to prove that all the accused persons had kidnapped the prosecutrix to compel her to marry accused Ravinder @ Bachichi. The prosecution has thus failed to prove on record beyond reasonable doubt that accused persons have committed an offence punishable u/s 366 IPC.
FIR No. 371/13. Page No. 23 of 28.
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62. The prosecution has though proved that prosecutrix was minor on the day of commission of offence and was found in the company of accused Satbir, when they were apprehended at Haridwar, but it has failed to prove that accused Satbir or any other accused persons had taken or enticed the prosecutrix to take her away from the keeping her lawful guardianship, without their consent.
63. The testimony of PW1 shows that prosecutrix herself left her house without informing her parents and went with accused Satbir to Haridwar, where they both were nabbed. Accused Satbir, as per the prosecutrix herself, was not aware that she had not informed her parents about her going to Haridwar. Thus, accused Satbir cannot be said to have committed the offence of kidnapping as prescribed u/s 361 IPC.
64. The prosecutrix had left her house on her own without any enticement or inducement or any other act attributable to accused persons, therefore, they cannot be said to have committed the offence of kidnapping.
65. The prosecution has thus failed to prove on record beyond reasonable doubt that on 24.10.2013, accused persons in furtherance of their common intention committed kidnapping of the prosecutrix from the lawful guardianship of her parents. The prosecution has thus failed to prove that accused persons have committed offence of kidnapping as prescribed u/s 361 IPC, FIR No. 371/13. Page No. 24 of 28.
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which is punishable u/s 363 IPC.
(iii) Whether accused Ravinder @ Bachichi committed an offence of criminal intimidation by giving threat to prosecutrix/minor for dire consequences to her brother?
66. The prosecution has claimed that accused Ravinder @ Bachichi had intimidated the prosecutrix by extending threat to face dire consequences.
67. The criminal intimidation has been defined in Section 503 IPC, which is punishable u/s 506 IPC. Both these provisions reads as under: -
"503. Criminal intimidation. - Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation."
"506. Punishment for criminal intimidation. - Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc. - And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or (imprisonment for life), or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."
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68. The offence of criminal intimidation requires either a person or another in whom, he is specifically interested to be threatened. There must be an intent to cause harm to the former by a threat to him of injury to himself or to the later. Therefore, intention must be to cause alarm to the victim and whether he is alarmed or not is really of no consequence. But material has to be brought on record to show that intention was to cause alarm to that person.
69. The prosecutrix has mentioned in her statement recorded u/s 164 CrPC that accused Ravinder @ Bachichi extended threat that he would beat her brother if she would not accompany him to Haridwar. The prosecutrix, however, has not mentioned in her statement recorded u/s 164 CrPC as to when such threat was extended by accused Ravinder @ Bachichi.
70. The prosecutrix has made detailed statement in her examination in chief as well. But she has not deposed a word in her entire statement recorded in the Court that accused Ravinder @ Bachichi had extended threat to accompany him to Haridwar or that accused Ravinder @ Bachichi extended threat to her to beat her brother.
71. The prosecutrix has deposed in her examination in chief that accused Ravinder @ Bachichi tried to make physical relation with her in the absence of her friend Sunita. However, during her cross examination, she admitted that she had not stated to the FIR No. 371/13. Page No. 26 of 28.
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police or to the concerned Ld. MM in her statement recorded u/s 164 CrPC that at the house of uncle of accused Ravinder @ Bachichi, he tried to make physical relation with her. She has further deposed that her statement was recorded by the police on her dictation, but she had not read the same. She further deposed that she has not informed the police at the time of recording of her statement that accused Ravinder @ Bachichi had extended any threat to her.
72. The testimony of PW1 made by her during her cross examination clearly show that she has not only made improvement in her statement, which she gave to the police as well before the Ld. MM, but has tried to bring new facts, which she had not earlier disclosed.
73. The prosecution has claimed that accused Ravinder @ Bachichi had extended threat to the prosecutrix to beat her brother and to face dire consequences, but no cogent material has been brought on record by the prosecution to establish the said fact.
74. In the absence of any cogent proof, I am of the considered view that the prosecution has failed to prove beyond any reasonable doubt that accused Ravinder @ Bachichi has committed the offence of criminal intimidation by giving threat to prosecutrix to face dire consequences and to beat her brother.
FIR No. 371/13. Page No. 27 of 28.
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Conclusion
75. In view of my above discussion, I am of the considered view that prosecution has failed to prove on record beyond any reasonable doubt that accused persons namely Satbir, Ramwati and Ravinder @ Bachchi have committed the offences punishable u/s 120B, 366 r/w/s 120B IPC. The prosecution has also failed to prove beyond any reasonable doubt that accused Ravinder @ Bachchi has committed the offence punishable u/s 506 IPC. Accordingly, all three accused persons namely Satbir, Ramwati and Ravinder @ Bachchi are acquitted in this case.
Digitally signed by PITAMBER Announced in the open Court PITAMBER DUTT DUTT Date: 2021.11.11
on 11 day of November 2021. 16:29:06 +0530 (PITAMBER DUTT) ASJ-02/DWARKA COURTS NEW DELHI.
FIR No. 371/13. Page No. 28 of 28.
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