Delhi District Court
State vs . Raju on 28 October, 2014
FIR No. 191/10; U/s 366/363 IPC; P.S. Aman Vihar D.O.D. 28.10.2014 IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS JUDGE04 (NORTH): ROHINI COURTS: DELHI Session Case No. 03/1 Unique Case ID No. 02404R0259012011 State Vs. Raju S/o Sh. Man Singh R/o E3/248, Veney Enclave, Laxmi Vihar, Prem NagarIII, Delhi110081 FIR No. : 191/10 Police Station : Aman Vihar Under Sections : 363/366 IPC Date of committal to Sessions Court: 03.12.2011 Date on which judgment was reserved: 28.10.2014 Date on which Judgment pronounced: 28.10.2014 JUDGMENT
On 13.06.2010, complainant Uday Raj (PW4) visited PS Aman Vihar and lodged complaint that his minor daughter (identity of victim has been deliberately withheld and she shall be referred as "V") aged about 16 years was missing since 11 pm of 23.05.2010 on which DD No. 31A dated 25.05.2010 was lodged. He raised suspicion over the accused herein to be involved in the kidnapping of his minor daughter, on the basis that accused used to visit in the neighbouring house of one Suraj. On the basis of said statement, FIR U/s 363 IPC was registered in PS Aman Vihar. State V/s Raju ("Acquitted") Page 1 of 10 FIR No. 191/10; U/s 366/363 IPC; P.S. Aman Vihar D.O.D. 28.10.2014 It is mentioned in the chargesheet that victim "V" appeared through Advocate in the Court of Ld. MM on 14.07.2010 and thereafter, her statement U/s 164 Cr.P.C. was got recorded. She was also got medically examined in the hospital. She stated before investigating officer that she had married with accused and the accused did not use any force against her. During the course of investigation, offence u/s 366 IPC was also added and the accused was formally arrested in this case.
After completion of investigation, chargesheet had been filed before the Court.
After compliance of section 207 Cr.P.C., the case was committed to the Court of Sessions and was assigned to Ld. Predecessor of this Court.
After hearing arguments on the point of charge, Ld. Predecessor of this Court was pleased to frame the charge u/s 363/366 IPC against the accused vide order dated 13.01.12 to which accused pleaded not guilty and claimed trial.
In support of its case, prosecution examined as many as six witnesses namely PW1 Smt. Nirmala Devi, PW2 HC Jai Singh, PW3 Dr. Rajesh Kohli, PW4 Sh. Udai Raj, PW5 Ct. Ravinder Kumar and PW6 i.e 'V'.
Considering the fact that none of the star witnesses relied by the prosecution in the present case, had supported the prosecution story on any material point, prosecution evidence has been closed as no useful purpose would have been served in examining the remaining prosecution witnesses as it would have been an exercise in futility in examining those prosecution witnesses besides wastage of precious time of the Court. State V/s Raju ("Acquitted") Page 2 of 10 FIR No. 191/10; U/s 366/363 IPC; P.S. Aman Vihar D.O.D. 28.10.2014 Since there was no incriminating evidence against the accused, his statement u/s 313 Cr.P.C. had been dispensed with.
I have heard Sh. Pankaj Bhatia, Ld. Addl. PP on behalf of State and ld. counsel Sh. Mahesh Kumar Adv. on behalf of accused. I have also gone through the material available on record.
Before discussing the submissions made on behalf of both the sides, it would be appropriate to discuss, in brief the testimonies of the aforesaid star witnesses examined by prosecution during trial. PUBLIC WITNESSES: PW1 Smt. Nirmala Devi: This witness produced the relevant record regarding admission of victim "V" in Prathmik Vidyalaya, Sambhawa, Gauriganj, Amethi, U.P. in ClassI on 01.07.2000 and proved the copy of relevant page of admission register as Ex.PW1/A. According to the said entry, the date of birth of "V" was 01.05.1994. She deposed that "V" had left the school in the year 2005 and School Leaving Certificate Ex.PW1/B was issued in this regard. The said witness has not been cross examined on behalf of accused despite grant of opportunity.
PW4 Sh. Udai Raj: He is the complainant in this case. He deposed that "V" was aged about 16 years when she left the house on 23.05.2010 at about 11 pm and did not return back. On 25.05.2010, he lodged missing report in respect of his daughter "V" at PS Aman Vihar.
He further deposed that on 13.06.2010, he went to PS Aman State V/s Raju ("Acquitted") Page 3 of 10 FIR No. 191/10; U/s 366/363 IPC; P.S. Aman Vihar D.O.D. 28.10.2014 Vihar and on the basis of his statement Ex.PW4/A, FIR in question was registered. He further deposed that on enquiry, it was revealed to him that accused had kidnapped his daughter as he used to reside in his neighbourhood. He was informed by the police after about 1 - 1½ month that his daughter has been recovered and he obtained his daughter from the permission of the Court.
During cross examination, he admitted that he did not see accused herein taking his daughter. He also admitted that his daughter was not recovered from the possession of the accused and he had merely raised suspicion upon the accused during chief examination. He had not seen anybody kidnapping his daughter. However, he denied the suggestion that his daughter was 18 years of age at the time of incident.
PW6 'V': She deposed that she had developed friendly relations with the accused in the year 2010. She, on her own, had left the house and accused did not kidnap her from the lawful guardianship of her parents.
She further deposed that she had gone to Tis Hazari Court alongwith the accused where they exchanged garlands with each other. Accused had never pressurized her for getting married with him nor forced her to do any illegal act. She had left the house of her own and no one had induced her. After performing marriage, she had gone to her native village at Sultanpur, U.P. and resided with her grand parents who, inturn, informed her parents after which her parents came to native village alongwith some police officials and took her to Delhi where she was got medically examined. She State V/s Raju ("Acquitted") Page 4 of 10 FIR No. 191/10; U/s 366/363 IPC; P.S. Aman Vihar D.O.D. 28.10.2014 had also made statement U/s 164 Cr.PC before Ld. MM. She also identified her signature at pointA on said statement Ex.PW6/A. She further deposed that her correct date of birth is 01.05.1994.
During cross examination, she admitted that she had disclosed her date of birth as 16.04.1991 to the accused and had introduced herself to be adult/major at the time of exchanging garlands with the accused. She admitted that for a valid marriage as per Hindu rites and rituals, saptpadi is mandatory and no saptpadi had taken place between her and accused at any point of time.
POLICE WITNESSES: PW2 HC Jai Singh: This is a formal witness who was working as Duty Officer in PS Aman Vihar. He deposed about factum regarding recording of missing report of "V" vide DD No. 19A on 25/5/10 and proved copy thereof as Ex.PW2/A. He also deposed about the factum regarding registration of FIR and proved copy of FIR as Ex.PW2/B. The said witness has not been cross examined on behalf of accused despite grant of opportunity.
PW5 Ct. Ravinder Kumar: This witness had accompanied IO to Village Sambhawa, Gauri Ganj, District Sultanpur, U.P. on 16.07.2010 and collected age proof of "V" from Primary Government School issued by its Principal.
During cross examination, he denied the suggestion that he did State V/s Raju ("Acquitted") Page 5 of 10 FIR No. 191/10; U/s 366/363 IPC; P.S. Aman Vihar D.O.D. 28.10.2014 not collect the said certificate.
MEDICAL EVIDENCE: PW3 Dr. Rajesh Kohli: This witness deposed on behalf of Dr. Avdhesh, Sr. Resident as the concerned doctor had already left the services of DDU Hospital. He identified the signature and handwriting of Dr. Avdhesh on MLC no. 1343 Ex.PW3/A of "V".
During cross examination, he admitted that he had no personal knowledge of the case.
ARGUMENTS ADVANCED & CASE LAW CITED It has been argued by Ld Additional PP that accused herein had kidnapped "V" by inducing her to go away from the lawful guardianship of her parents. In this regard, he heavily relied upon the testimony of PW6 i.e. "V" wherein she has deposed that she had accompanied the accused to Tis Hazari Court premises where she entered into marriage with him by exchanging garlands with each other. He further argued that since accused compelled "V" to enter into marriage with him, offence U/s 366 IPC has also been proved in this case. Therefore, the accused should be convicted for the said offence.
On the other hand, Ld. counsel of accused vehemently argued that both the star witnesses of prosecution i.e. PW4 and PW6 did not support its case on any material point and thus, prosecution has failed to prove its case State V/s Raju ("Acquitted") Page 6 of 10 FIR No. 191/10; U/s 366/363 IPC; P.S. Aman Vihar D.O.D. 28.10.2014 beyond reasonable doubt.
The expression "kidnapping from lawful guardianship" has been defined in Section 361 IPC, which reads as under:
"Whoever takes to 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 and custody of such minor or other person".
It is quite evident from the bare perusal of aforesaid provision that inducement or allurement of minor by the accused, is sinequa non for attracting the offence of kidnapping which is punishable by Section 363 IPC. It is well settled law that where a minor herself leaves the house of her father without any inducement or allurement by the accused and where the accused merely allows her to accompany him, the accused cannot be held guilty of kidnapping. Still if any authority is required, then reference with advantage can be made to the judgment of Hon'ble Apex Court in the matter titled as State of Haryana vs. Raja Ram reported at AIR 1973 SC 819. Similar view has been taken by Hon'ble Apex Court in the celebrated judgment of Varadarajan vs. State of Madras reported at AIR 1965 SC 942.
In other words, offence of kidnapping as defined in Section 361 State V/s Raju ("Acquitted") Page 7 of 10 FIR No. 191/10; U/s 366/363 IPC; P.S. Aman Vihar D.O.D. 28.10.2014 Cr.P.C. is not made out when a minor girl, of her own accord, comes out of the custody of her lawful guardians and at subsequent point of time, accused joins her.
It may also be noted here that offence of kidnapping is not made out where a minor girl is found to be in the company of accused. Same is not sufficient to prove the offence of kidnapping unless and until there is some cogent evidence on record to show that it was the accused alone who had enticed or took away the minor with some kind of inducement. The entire burden to prove the same lies upon the prosecution and said burden has to be discharged beyond reasonable doubt.
In the case in hand, PW6 i.e. "V" herself admitted during chief examination itself that accused had not kidnapped her from the lawful guardianship of her parents. She has also testified that she had left her house of her own and no one had induced her in this regard.
The reliance placed by Ld. Additional PP upon the testimony of PW4 who is none else but natural father/guardian of "V", would also go to show that nothing incriminating has come on record during the testimony of said witness as she admitted during cross examination that he did not see any person including accused taking her daughter away from his lawful guardianship. He also admitted during cross examination that her daughter "V" was not recovered from the possession of accused and he has merely raised suspicion against the accused. It needs no emphasis that suspicion alone cannot take place of proof. That being so, Court is of the view that State V/s Raju ("Acquitted") Page 8 of 10 FIR No. 191/10; U/s 366/363 IPC; P.S. Aman Vihar D.O.D. 28.10.2014 prosecution has been miserably failed to show that it was the accused who had enticed the victim i.e. "V" or had taken her away out of the keeping of her lawful guardianship or without the consent of her guardien.
This brings me down to the other offence punishable U/s 366 IPC charged against the accused in this case. In order to prove the said offence, it was mandatory for the prosecution to establish by way of cogent evidence that the accused herein had compelled the victim "V" to enter into marriage with him. The other parts of Section 366 IPC are undisputedly not applicable to the facts of the case herein. However, the prosecution again failed to prove the same during the course of trial. Rather, PW6 i.e. "V" admitted during her cross examination that she had introduced herself to be major/adult before the accused and had disclosed her date of birth to be 16.04.1991 to the accused. She also admitted that she was well aware about the fact that for entering into valid marriage as per Hindu law, saptpadi is mandatory. She also admitted that no saptpadi had taken place between the accused and her at any point of time. Not only this, she also deposed during chief examination itself that accused never pressurized her for performing marriage with him nor forced her to do any illegal act. That being so, Court is of the considered opinion that all the necessary ingredients of offence punishable U/s 366 IPC could not be fulfilled by way of evidence, which has come on record in this case.
In view of the aforesaid discussion, Court is of the view that prosecution has miserably failed to establish the charges levelled against the State V/s Raju ("Acquitted") Page 9 of 10 FIR No. 191/10; U/s 366/363 IPC; P.S. Aman Vihar D.O.D. 28.10.2014 accused beyond shadow of doubt. Consequently, accused namely Raju is acquitted of the charge levelled against him. File be consigned to Record Room after compliance of Section 437A Cr.P.C.
Announced in open Court today
dt. 28.10.2014 (Vidya Prakash)
Additional Sessions Judge04
North District, Rohini Courts
Delhi
State V/s Raju ("Acquitted") Page 10 of 10