Delhi District Court
State vs Pritam @ Vicky on 31 July, 2024
IN THE COURT OF SHRI VIPIN KHARB
ADDITIONAL SESSIONS JUDGE-07 : SOUTH-EAST DISTRICT
SAKET COURTS : NEW DELHI
SC No. 296/2024
CNR No. DLSE01-006105-2024
State Vs. Pritam @ Vicky
S/o Sh. Chote Lal
R/o Gali No.16,
Molarband Market,
Badarpur, New Delhi
FIR No. : 53/2024
Police Station : Badarpur
Under Sections : 363/366 IPC
Date of committal to Sessions Court : 05.06.2024
Date on which judgment was reserved : 31.07.2024
Date on which Judgment pronounced : 31.07.2024
JUDGMENT
BRIEF FACTS OF THE CASE:
1. On 04.02.2024, complainant Gopal came to PS Badarpur and gave complaint that from 02.02.2024 at about 2:00 p.m. his minor daughter 'N' has gone missing and despite a thorough search, he could not find any clue of her whereabouts and he suspects that some unknown person has taken her away. On the basis of complaint, police registered FIR u/s 363 IPC.
During investigation, on 09.02.2024, missing girl 'N' came to police station with her family members. DCW counsellor was informed who came and counselled the victim. Victim was medically examined and she denied for FIR No.53/2024 State Vs Pritam page 1 of 10 her internal examination. IO in presence of DCW counseller examined the victim and enquired about any sexual assault with her to which she denied and after that she was sent to one stop center. On 12.02.2024, her statement u/s. 164 Cr.PC was recorded in which she stated that on 02.02.2024 at around 2:00 p.m. she left her house without informing her parents and married Vicky and wants to live with him. She did not know her date of birth. After recording her statement, Sec. 366 IPC was added. The age of victim was verified from Govt. Senior Secondary School, Badarpur and her date of birth was found to be 20.02.2007. During investigation, it was found that false aadhar card of the prosecutrix was used for getting her married and getting marriage certificate, therefore, section 466 IPC was added. After completing the formalities, charge-sheet was filed in the court u/s. 363/366/466/34 IPC. After complying with Sec.207 Cr. P.C, case was committed to the Sessions Court.
2. After hearing arguments, no charge for the offence u/s. 466 IPC was framed and charge was framed against the accused on 20.07.2024 for the offences punishable u/s. 363/366 IPC to which accused pleaded "Not Guilty" and claimed trial and accordingly the case was fixed for prosecution evidence.
3. PW-1 'N' deposed that she does not remember the date and year but at about 2:00 p.m. she left her home and went to Badarpur Border an called accused Vicky there as she wanted to marry him. Accused came there and both of them went to house of his maternal uncle and from there they went to Karkardooma Courts where they got married and after marriage, FIR No.53/2024 State Vs Pritam page 2 of 10 they went to the house of accused. After two days, her father and some police officials came there and took them to police station. IO got her medically examined vide MLC report No.739/2024 as Ex.PW-1/A. Thereafter, she was produced before CWC at Chhatarpur and after inquiry the Board directed the IO to drop her at Shelter Home and she lived in shelter home for about 3 months and by the order of CWC her father took her to home. She was called by the IO at Saket Court and Ld. MM recorded her statement u/s. 164 Cr.PC Ex. PW-1/B. She correctly identified the accused during her examination and exhibited the marriage deed / MOU / agreement as Ex.PW-1/C, marriage certificate as Ex.P1 and photographs as Ex.P2 and Ex.P3.
After taking permission from the court, Ld. Addl. PP for the State cross-examined PW-1 as she resiled from the prosecution case. In her cross-examination by Ld. Addl. PP for the State, she stated that she left her home on 02.02.2024 and admits that her date of birth is 20.02.2007. She denied the suggestion that accused enticed her for leaving her house and go with him and denied all the suggestions given to her by Ld. Addl. PP for the State.
4. PW-2 Sh. Gopal and PW-3 Smt. Pinki are parents of the victim. They deposed that on 02.02.2024 they found their daughter 'N' missing from home and they searched for her nearby the house but could not find her, so, they went to police station where IO recorded statement of PW-2 as Ex.PW-2/A. PW-2 gave photograph of his daughter to the IO and after two days IO informed that accused Vicky took their daughter. They went to the PS. Medical examination of their daughter was got conducted by the IO, FIR No.53/2024 State Vs Pritam page 3 of 10 thereafter, IO took their daughter to CWC, Kalkaji and on direction of CWC Board, IO dropped their daughter to Shelter Home, Kalkaji where she remained for three months. On the directions of CWC, PW-2 brought his daughter to home. PW-2 was called by the IO at Saket court where statement u/s. 164 Cr.PC of his daughter was recorded before Ld. MM. Their daughter did not disclose anything about the incident and they did not know the date of birth of their daughter.
After taking permission from the court, Ld. Addl. PP for the State cross-examined PW-2 and PW-3 as they resiled from their earlier statement. In their cross-examination by Ld. Addl. PP for the State, they stated that they cannot admit or deny the suggestion that date of birth of their daughter is 20.02.2007. They denied the suggestion that they have settled the matter with the accused and denied all the suggestions given to them by Ld. Addl. PP for State.
5. PW-4 SI Onkar deposed that on 04.022024, complainant Gopal and his wife Pinki came to police station and narrated about the incident that his daughter is missing since 02.02.2024 and he was in suspicion that some unknown person allured his minor daughter and kidnapped her. He recorded the statement of complainant and prepared rukka Ex.PW-4/A and got registered the FIR. He deposed about the investigation conducted by him, arresting the accused vide memo Ex.PW-4/B, recording disclosure statement of accused as Ex.PW-4/C and seizing the mobile phone of accused vide seizure memo Ex.PW-4/D.
6. Accused has admitted MLC No. 739/2024 of victim as Ex.PW-
FIR No.53/2024 State Vs Pritam page 4 of 10 1/A, marriage certificate No.1033 dated 05.02.2024 as Ex.P1, Age certificate of victim as Ex.D1 and affidavit of marriage dated 02.02.2024 as Ex.PW-1/C.
7. As complainant and all the public witnesses were examined and they did not support the case of prosecution and remaining witnesses were all formal witnesses and no purpose will be served by examining them, therefore, prosecution evidence was closed and matter was fixed for recording statement of accused.
8. The statement of accused under Section 313 Cr.P.C. was recorded on 31.07.2024 in which he denied the allegations and submitted that he did not enticed the prosecutrix 'N' and she told him that she is a major and wants to marry him and she went to KKD court to marry him and he has been falsely implicated in the present case and he did not want to lead any defence evidence. Thereafter, final arguments were heard.
9. I have heard the arguments advanced by the Ld. Addl. PP for the State and Ld. Counsel for the accused and have perused the record.
10. In order to prove the offecne u/s 363/366 IPC against accused, the prosecution was required to prove beyond reasonable doubt that accused kidnapped 'N' from the possession of lawful guardian / complainant Gopal with intention that she may be compelled to marry him. Henceforth, court shall now proceed further to evaluate the evidence available on record to find out if the prosecution has succeeded in its task or not.
FIR No.53/2024 State Vs Pritam page 5 of 10
11. Now let us examine the prosecution evidence brought on record against the accused.
12. Before proceeding further let us go through the relevant provisions of law.
"Section 366 IPC says - 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 also be punishable as aforesaid."
13. For an offence under section 366 IPC, it is necessary to prove that :-
(1) The woman in question has been kidnapped or abducted. (2) The woman in question is compelled to marry any person against her will or (3) The woman in question is forced or seduced to illicit intercourse.
(4) Accused has the intention or knowledge that woman will be compelled or forced as such.
14. As per the prosecution 'N' was below 18 years of age when FIR No.53/2024 State Vs Pritam page 6 of 10 accused Pritam @ Vicky took her away from the lawful guardianship of her father i.e. PW-2 / complainant but as per 'N' she called accused Pritam @ Vicky at Bardarpur and went with him.
15. So for the culpability for the offence u/s 366 IPC, it is necessary for the prosecution to prove that 'N' was kidnapped by accused Pritam. As per the prosecution case victim 'N' was below 18 years of age when she was taken away from her lawful guardian by accused Pritam. Offence of kidnapping from lawful guardianship has been defined in sec 361 IPC.
Sec. 361 IPC says:- Kidnapping from lawful guardianship- whoever takes or entices any minor under 16 years of age if a male, or under 18 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.
16. So for the offence of kidnapping from the lawful guardianship it was necessary for prosecution to prove that 'N' was either taken or enticed away from the keeping of her lawful guardian i.e. her parents. The term "taken or enticed away" has been discussed by Hon'ble Supreme Court in the judgment titled as "Varadarajan vs State of Madras" 1965 AIR 942, 1965 SCR(1) 243, wherein, Hon,ble Supreme Court has held that:-
"......... where a minor girl, alleged to be taken away by the accused person, had left her father's protection knowing and having capacity to know the full import of what she was doing and voluntarily joined the accused, it could not be said that the accused had taken her away from the keeping, of her lawful guardian within the meaning of Sec.361 of the Indian Penal Code (Act XLV of 1860). Something more had to be done in case of that kind, such as an inducement held out by the accused person or an active participation by him in the formation of the intention, either immediately prior to the minor leaving her father's protection or at some earlier stage. If the evidence failed to establish one of these merely because after she had actually left her guardian's house or a FIR No.53/2024 State Vs Pritam page 7 of 10 house where her guardian had kept her she joined the accused, and the accused helper her in her design not to return to her guardian's house by taking her alongwith him from place to place...."
17. Adverting to the facts of the present case and what has come in the deposition of victim 'N' as PW-1 was that she was in love with Pritam @ Vicky and wants to marry him, so she out of her own volition left her house and went to Badarpur Border, there she called accused Pritam and from there they both went to house of his maternal uncle. The law did not cast upon Pritam the duty of taking her back to her father's house or even of telling her not to accompany him.
18. As per the prosecution, on the day prosecutrix left her house, she was of 17 years of age, so, she was not of a tender age, who cannot think for herself but was capable of knowing what was good or what was bad for her. In the present case there was no evidence of any solicitation or inducement by accused Pritam at any time. Further, there was no suggestion that the 'N' was incapable of thinking for herself and making up her own mind. In the considering opinion of the court, 'N' went out of the protection of her parents of her own accord and thereafter called accused and went with him. 'N' was into friendly relationship with accused and she wants to marry accused.
19. PW-1 / 'N' specifically deposed that she went with accused out of her own volition and free will and without any force or coercion. Therefore, Court is satisfied, upon the material on record, that no offence under section u/s 361 of kidnapping from lawful guardian has been established by the FIR No.53/2024 State Vs Pritam page 8 of 10 prosecution.
20. Further, PW-1/'N' has deposed that with accused she went to his maternal uncle home and from there they went to Karkardooma Court and got married and they also produced their documents and got the marriage certificate issued. The conduct of 'N' that she went with the accused to KKD court where they met lawyer and got married shows that she was not under any compulsion or force when she married with the accused.
21. As discussed above one of the essential ingredients of the Sec 366 IPC is that the person in question should have been kidnapped or abducted but in the present case prosecution failed to prove that 'N' has been either kidnapped or abducted by accused and she was also not compelled to marry with accused, therefore, accused cannot be convicted for the offence u/s 363/366 IPC.
22. In the light of the above said discussion and appreciation of evidence court is of the opinion that the prosecution has not been able to prove it's case against the accused person beyond reasonable doubts, hence, the accused Pritam @ Vikcy is acquitted from the charge u/s. 363/366 IPC framed against him.
23. Documents, if any, be returned to the rightful owner after due acknowledgment and endorsement, if any, made on it be canceled accordingly.
FIR No.53/2024 State Vs Pritam page 9 of 10
24. File be consigned to Record Room after completing necessary VIPIN Digitally signed by VIPIN KHARB formalities. KHARB Date: 2024.07.31 15:52:24 +0530 Announced in open Court today (Vipin Kharb) on 31.07.2024 Additional Sessions Judge-07 South-East, Saket Courts, New Delhi FIR No.53/2024 State Vs Pritam page 10 of 10