Delhi District Court
State vs . Sanjay Kumar And Others on 22 November, 2018
IN THE COURT OF O. P. SAINI: ADDL. SESSIONS JUDGE/SPL.
JUDGE (CBI04), PATIALA HOUSE COURT, NEW DELHI
Old SC No. 114/2013
New SC No. 55/2018
State Vs. Sanjay Kumar and Others
FIR No. 74/2013
U/s: 363/365/366/366A/367/368/370/372/373/120B IPC
PS: Sagarpur
1. Date of Institution : 23.07.2013
2. Date of Commencement
of Final Arguments : 26.09.2018
3. Date of Conclusion of
Final Arguments : 16.10.2018
4. Date of Reserving Order : 16.10.2018
5. Date of Pronouncement : 22.11.2018
6. Whether Acquitted or
Convicted? : All accused acquitted.
Present: Sh. Pradeep Kumar, Addl. PP for the State.
All eight accused on bail.
Sh. Nishant Kumar Das and Ms. Mahima Misra,
Advocates for accused Sanjay Kumar (A1) and Amrish
(A2).
Sh. R. B. Sharma, Advocate for accused Usha (A3).
Sh. A. P Jain, Advocate for accused Veera (A4) and
___________________________________________________________________________
State Vs. Sanjay Kumar and Others
FIR No. 74/13, PS: Sagarpur Page 1 of 44
Anandi (A5).
Sh. Avinash Nandan Sharma, Advocate for accused
Indrapal Sharma (A6).
Ms. Anju Dixit, Advocate for accused Pradeep (A7).
Sh. Virender Tyagi, Advocate for accused Lokesh (A8).
JUDGMENT
Brief Facts of the Case The instant case was got registered by Smt. Pushpa W/o Sh. Tek Chand on 10.04.2013, when her daughter Preeti, aged about thirteen years and her friend Simran D/o Sh. Raju, aged fourteen years did not return to their house after they had gone out for some work at about 12:30 PM on 09.04.2013. It was suspected that some unknown person had kidnapped the two girls. Accordingly, police registered a case under Section 363 IPC.
2. During investigation, both Preeti and Simran were recovered by the police from the possession of accused Sanjay Kumar, Amrish, Usha, Veera, Anandi, Indrapal Sharma, Pradeep and Lokesh and they were arrested. Two accused, namely, P. K. Singh and Pooja could not be arrested and were declared Proclaimed Offenders. During investigation, it was found that the girls were sold and purchased by the accused persons for purpose of marriage. Statements of Preeti and Simran were got recorded under Section 164 CrPC, TIP proceedings of some of the accused ___________________________________________________________________________ State Vs. Sanjay Kumar and Others FIR No. 74/13, PS: Sagarpur Page 2 of 44 were got conducted, statements of witnesses were recorded, investigation was completed and charge sheet under Section 363/366/368/370(5)/372/120B IPC was filed in the Court.
Committal of the Case and Framing of Charges
3. The accused were summoned and on completion of formalities under Section 207 CrPC, the case was committed to the Court of Sessions on 26.09.2013.
4. Vide order dated 18.10.2014, my learned predecessor was pleased to frame charges under Sections 363/365/366/366 A/367/368/370/372/373 read with Section 120B IPC against the accused, to which they pleaded not guilty and claimed trial.
Evidence of the Prosecution
5. In support of its case, the prosecution has examined twentyseven witnesses in all.
6. PW 1 is ASI Satyavir Singh. In the intervening night of 09/10.04.2013, he was working as Duty Officer in PS Sagarpur from 12:00 midnight to 08:00 AM. On that day at about 12:15 AM, SI Chetan Mandia produced a rukka before him, on the basis of which he registered FIR No. 74/2013 under Section 363 IPC, a copy of which is Ex PW 1/A and his endorsement on the rukka is Ex PW 1/B.
7. PW 2 is complainant Smt. Pushpa Devi, who had lodged ___________________________________________________________________________ State Vs. Sanjay Kumar and Others FIR No. 74/13, PS: Sagarpur Page 3 of 44 the complaint when her daughter Preeti did not return home. She has deposed that on 09.04.2013, her daughter Preeti and her friend Simran, aged about thirteen and fourteen years respectively, had gone out for some work at about 12:30 Noon. She further deposed that the girls did not return home and she searched her daughter and her friend in the houses of a relative but none of them was found. She suspected that someone had kidnapped her daughter and her friend from her guardianship and accordingly, she lodged complaint, Ex PW 2/A, with the police on 10.04.2013, leading to the registration of the instant case.
8. PW 3 is Dr. Yogender Nath Maurya of Satyavadi Raja Harishchand Hospital, Narela. He had examined Ms. Simran, aged about fourteen years and an MLC, Ex PW 3/A, was prepared by Dr. Deep Shikha, who was working under his supervision. He also referred the patient for Gyenological examination.
9. PW 4 is Dr. Rajesh Kohli of DDU Hospital, Delhi. He conducted medical examination of Preeti. He had examined Ms. Preeti, aged about thirteen years and an MLC, Ex PW 4/A, was prepared by Dr. Anurag Ahuja, who was working under his supervision. He also referred the patient for Gyenological examination.
10. PW 5 is Ms. Vimla, mother of Simran. She deposed that on 09.04.2013, one girl Preeti had come to her house and her daughter Simran, aged thirteen years, accompanied her but ___________________________________________________________________________ State Vs. Sanjay Kumar and Others FIR No. 74/13, PS: Sagarpur Page 4 of 44 thereafter did not return. Mother of Preeti came to her house and quarreled with her. She searched for her daughter but she could not be found and thereafter she lodged a complaint with the police.
11. PW 6 is Dr. Renuka Gupta of Action Cancer Hospital, Paschim Vihar. On 29.04.2013, Simran, aged about thirteen years, was brought to her hospital by W/Ct. Manju and she saw her MLC and took her history of her alleged kidnapping from her MLC but did not internally examine her, as her father refused internal examination. She further deposed that there was no history of physical or sexual assault. She signed on the MLC, Ex PW 4/A, at point B.
12. PW 7 is Ct. Heera Lal. On 28.04.2013, he had joined the investigation of the instant case and had gone to Muzaffarnagar with other police officials. In Muzaffarnagar, they went to House No. 1205, Janakpuri, where accused Sanjay was interrogated. Accused Sanjay pointed out towards other accused Amrish @ Naveen. Both were arrested on the allegations that they had bought a girl, namely, Simran @ Priyanka. Accused Sanjay disclosed that he could get other accused, namely, Anandi, Indrapal, Sushma and Usha apprehended, as they would come at the Railway Station to collect the balance payment of Rs.50,000/. Accordingly, the police team along with the two accused went to Muzaffarnagar Railway Station. Accused Anandi, Indrapal and Usha arrived at Muzaffarnagar Railway Station by train from ___________________________________________________________________________ State Vs. Sanjay Kumar and Others FIR No. 74/13, PS: Sagarpur Page 5 of 44 Uttarakhand and they were arrested. These accused were identified by one Veera, who had allegedly sold Preeti to Pradeep. Veera further disclosed that she could get accused Pradeep arrested. Accordingly, a team led by SI Krishan Kumar, left for Muzaffarnagar along with accused Sanjay, Anandi, Veera, Usha, Amrish @ Naveen and Inderpal. He further deposed that another team led by SI Chetan reached Biral Village and made inquiries about accused Pradeep and they searched the house of Pradeep from where Preeti was recovered. Accordingly, accused Pradeep was arrested, who disclosed that his maternal uncle Lokesh was instrumental in the purchase of Preeti. Disclosure statement of accused Pradeep was recorded vide Ex PW 7/A.
13. PW 8 is Sh. Sunil Kumar, cousin of Simran. He deposed that on 23.04.2013, a call was received on the mobile phone of his uncle from a person, who identified himself as Sanjay, informing him that Simran was with him and they could take her. Accordingly, he informed the local police. Thereafter, he along with a police party left for Haridwar in the morning of 24.04.2013 and searched for Simran as per the information given by Sanjay but she could not be found. On 25.04.2013, he again searched for her and found her fourfive kilometres away from the Police Station Kotwali, near the market. She also told that she could identify Sanjay and his house. Thereafter, they went to Muzaffarnagar and on the pointing out of Simran, they went to a house but the house ___________________________________________________________________________ State Vs. Sanjay Kumar and Others FIR No. 74/13, PS: Sagarpur Page 6 of 44 was locked. Thereafter, they returned to Delhi.
14. PW 9 is Ct. Surender Singh. He deposed that on 01.05.2013, he was posted in Police Station Sagarpur. He further deposed that information was received that accused Lokesh would come to meet accused Pradeep in Tihar Jail and if search was carried, he could be found at Shahadra Railway Station. On the pointing out of secret informer, he was arrested and interrogated. His arrest memo is Ex PW 9/A and his personal search was conducted vide Ex PW 9/B. His disclosure statement was recorded vide Ex PW 9/C.
15. PW 10 is Ms. Preeti. She deposed that in 2013, she used to study in Great Mission School in ClassVIII and had begun conversation with a boy, named Raj, due to a missed call. She further deposed that she had also met him at Red Fort twothree times and had also gone to Red Fort on 08.04.2013. She further deposed that Raj told her that they should go to Nainital and she agreed. She returned to her house from Red Fort and asked her friend Simran, if she wanted to accompany her to Nainital, to which she agreed. On 08.04.2013 itself, Raj asked her to reach New Delhi Railway Station. Accordingly, on 09.04.2013, she along with Simran reached New Delhi Railway Station. She borrowed a mobile phone from somebody and called Raj and he told her to reach Old Delhi Railway Station and accordingly, they reached Old Delhi Railway Station. There, Raj had taken tickets and they went ___________________________________________________________________________ State Vs. Sanjay Kumar and Others FIR No. 74/13, PS: Sagarpur Page 7 of 44 to Ghaziabad. In Ghaziabad, they met one P. K. Singh (since P.O.) and stayed overnight over there. On 10.04.2013, at about 04:0005:00 AM, they were taken to Haridwar.
In Haridwar, Raj and P. K. Singh handed them over to Pooja (since P.O.) and Pooja took them to the house of accused Sushma @ Usha. In the house of accused Sushma @ Usha, she met accused Veera, Indrapal, Pradeep, Lokesh, Anandi and one Ashu. She further deposed that accused Sushma, Anandi, Indrapal, Veera and one Pooja sold her off to Pradeep, who was accompanied by his maternal uncle accused Lokesh, brother Deendayal and a friend Ashu. Thereafter, accused Pradeep took her to his village at Biral and she remained in his house for fifteen days. She used to live with his mother, where police reached on 28.04.2013. She got her statement recorded before the Magistrate under Section 164A CrPC, which is Ex PW 10/A. However, she did not support the prosecution version on all aspects of the case and was crossexamined by learned Addl. PP. In crossexamination by learned Addl. PP, she further deposed that there was a fake marriage of her with accused Pradeep and she was told to live as his wife and she lived with him upto 28.04.2013 but he did not commit any wrong act with her.
16. PW 11 is HC Dashrath. He deposed that on 23.04.2013, he was posted in Police Station Sagarpur and on the asking of IO, joined the investigation of the case for search of Simran and went ___________________________________________________________________________ State Vs. Sanjay Kumar and Others FIR No. 74/13, PS: Sagarpur Page 8 of 44 to Haridwar on 23.04.2013. He further deposed that on 23 & 24.04.2013, they searched for Simran at Haridwar. About recovery of Simran, he has deposed on the same lines as deposed to by PW 8 Sh. Sunil Kumar. He proved recovery memo, Ex PW 11/A, of Simran and pointing out memo, Ex PW 11/B, of the house of Sanjay prepared at the instance of Simran.
He further deposed that on 28.04.2013, he again joined the investigation of the present case and he along with other police party went the house of Sanjay and he was arrested vide memo, Ex PW 11/C, and his personal search was conduced vide memo, Ex PW 11/D, and his disclosure statement was recorded vide memo, Ex PW 11/E. On the disclosure statement of accused Sanjay, accused Amrish was also arrested vide arrest memo, Ex PW 11/F, and his personal search was conducted vide memo, Ex PW 11/G, and his disclosure statement was recorded vide memo, Ex PW 11/H. On the pointing out of accused Sanjay, accused Usha, Anandi, Veera and Indrapal.
Accused Sanjay also disclosed that accused Indrapal, Anandi, Sushma @ Usha and Veera were also involved in the case. Accordingly, accused Indrapal, Anandi and Sushma @ Usha were arrested vide arrest memos, Ex PW 11/J to L, and their personal search was conducted vide memos, Ex PW 11/M to N1. Accused Veera was also arrested and she disclosed about Preeti being present at Village Biral. Accordingly, the police team reached the ___________________________________________________________________________ State Vs. Sanjay Kumar and Others FIR No. 74/13, PS: Sagarpur Page 9 of 44 house of accused Pradeep, who was found present in his house and girl Preeti was also recovered from the house of accused Pradeep. Accused Pradeep was arrested and the police team returned to Delhi with Pradeep, Veera and Preeti. He again joined the investigation of the case on 05.05.2013 for search of accused Pooja, P. K. Singh and Raj. However, they could not be arrested and pointing out memos, Ex PW 11/P, Q and S were prepared. He also proved disclosure statements of Indrapal and Veera, Ex PW 11/T and U.
17. PW 12 is Ct. Manju. On 26.04.2013, she had taken Simran for medical examination to DDU Hospital. She had also brought Simran to Patiala House Court for her statement under Section 164 CrPC.
18. PW 13 is Ct. Gayatri. She deposed that she joined the investigation of the case on 28.04.2013 and had gone to Muzaffarnagar. She has deposed about the arrest of accused Sanjay, Amrish, Veera, Anandi, Indrapal and Sushma @ Usha. She has deposed on the same lines as deposed to by PW 11 HC Dashrath. She also deposed that she conducted the personal search of accused Veera, Anandi and Usha vide Ex PW 16/B to D, who were arrested vide arrest memos, Ex PW 11/J, 11/K and 16/A.
19. PW 14 is Sh. Dalip Singh, who runs a restaurant by the name and style of "Lodhi Restaurant" at Haridwar Road, Dehradun. He deposed that in the summer of 2015, accused Usha, who is a ___________________________________________________________________________ State Vs. Sanjay Kumar and Others FIR No. 74/13, PS: Sagarpur Page 10 of 44 resident of Lal Tapad, Dehradun, along with her associates, had come to his restaurant and had taken tea, water etc.
20. PW 15 is Simran. She has deposed on the same lines as deposed to by PW 10 Preeti as far as their going to Ghaziabad is concerned.
She further deposed that at Ghaziabad, they stayed for one night at the house of Raj. On the next day, he took them to Haridwar and there Raj had taken them to the house of Sushma. He told them to stay there till he returned. Accordingly, they stayed at the house of Sushma for twothree days but Raj did not return. Thereafter, Sushma locked them in separate rooms. She further deposed that one lady Pooja was also with accused Sushma and they heard talk of their marriage. Preeti was taken out of her room and she was told that she was going to be married. On the next day, she was also taken out of the room of Pooja and Sushma and told that Preeti had already been married and she would also be married. Thereafter, she was taken to a hotel, where Sushma told that she would be married to Sanjay, who was present there. Thereafter, she was engaged to marry with Sanjay and Sanjay had given rupees two lakh to Sushma. From there, Sanjay took her to the house of his maternal aunt, where they had made arrangement for marriage and she was married to accused Sanjay.
She further deposed that Sushma had told her name as Priyanka to Sanjay and not her real name. She disclosed her real ___________________________________________________________________________ State Vs. Sanjay Kumar and Others FIR No. 74/13, PS: Sagarpur Page 11 of 44 name as Simran to Sanjay. Thereafter, on 23.04.2013, accused Sanjay made a call to her father and told him that she was with him and he should come and take her back and on 25.04.2013, her father had come to Haridwar and Sanjay and Amrish took her to police station. In the police station, SI Chetan met her and made inquiries from her. At that time, Sanjay and Amrish were also present in the police station. Thereafter, her father brought her back to Delhi. She also deposed that it was Anandi, who had brought her marriage proposal to Sushma. Her statement was got recorded under Section 164 CrPC, which is Ex PW 15/A.
21. PW 16 is SI Krishan Kumar. He had joined the investigation of the case on 27.04.2013. On 28.04.2013, he along with other police party had gone to Muzaffarnagar for search of Preeti and the accused persons. He has deposed on the same lines as deposed to by PW 11 HC Dashrath about arrest of accused Sanjay, Amrish, Indrapal, Sushma @ Usha, Anandi and Veera. In addition to that, he deposed that accused Anandi was arrested vide arrest memo, Ex PW 16/A. Personal search of accused Sushma was conducted vide memo, Ex PW 16/B. Accused Veera was personally searched vide memo Ex PW 16/C. Accused Anandi was personally searched vide memo Ex PW 16/D. Disclosure of accused Sushma was recorded vide memo Ex PW 16/E.
22. PW 17 is HC Raj Kumar. He also joined the investigation on 28.04.2013. He has deposed on the same lines as deposed to by ___________________________________________________________________________ State Vs. Sanjay Kumar and Others FIR No. 74/13, PS: Sagarpur Page 12 of 44 PW 11 HC Dashrath about recovery of Preeti. Apart from that, he has also proved a pointing out memo, Ex PW 17/A, of the place, where accused Pradeep had detained her. He also proved recovery memo, Ex PW 17/B, of Preeti.
23. PW 18 is Ct. Seema. She deposed that on 29.04.2013, she had taken a victim for medical examination to DDU Hospital, where her father refused to get her medically examined internally. Thereafter, she took her to Patiala House Court for her statement under Section 164 CrPC and finally left her at Nirmal Chhaya.
24. PW 19 is SI Hari Singh. He had joined the investigation of the case on 04.05.2013. On 05.05.2013, they went to Dehradun for investigation, where pointing out memos, as deposed to by PW 11, were prepared. He also deposed that pointing out memos, Ex PW 19/A and B were prepared.
25. PW 20 is Ct. Gulbir Singh. He joined the investigation of the case on 27.04.2013. He has deposed on the same lines as deposed to by other witnesses regarding arrest of accused persons and recovery of Preeti from Village Biral.
26. PW 21 is Ct. Meera. She deposed that on 27.04.2013, she along with SI Chetan Mandia went to Nirmal Chhaya, from where they got released Simran and produced her before DLSA, Patiala House Court.
27. PW 22 is Ct. Banita. She joined the investigation of the case on 05.05.2013. She has deposed on the same lines as deposed ___________________________________________________________________________ State Vs. Sanjay Kumar and Others FIR No. 74/13, PS: Sagarpur Page 13 of 44 to by PW 19 SI Hari Singh.
28. PW 23 is Ms. Poonam, Welfare Officer, CWC. She had recorded statement of Preeti about the incident.
29. PW 24 is Sh. Rajesh Kumar Solanki, Member, Nirmal Chhaya. He deposed that Simran and Preeti were counselled at Nirmal Chhaya by Dr. Anita Tiwari and their counselling proceedings are Ex PW 24/A and B.
30. PW 25 is Ms. Gomati Manocha, the then learned Metropolitan Magistrate, New Delhi. She recorded the statements of Simran and Preeti under Section 164 CrPC on 26.04.2013 and 27.04.2013 respectively, which are Ex PW 15/A and 25/A.
31. PW 26 is HC Surender. He joined the investigation on 27.04.2013. He has deposed on the same lines as deposed to by PW 19 SI Hari Singh.
32. PW 27 is SI Chetan Mandia, Investigating Officer of the case. He deposed that on statement of the complainant, the instant case was registered, when he prepared a rukka, Ex PW 27/A. He conducted investigation of the case, arrested the accused and recovered the two victim girls. He has deposed on the same lines as deposed to by earlier witnesses regarding recovery of victims and arrest of accused persons. He also prepared site plans, Ex PW 27/B and C. He recorded the statements of witnesses, completed the investigation and filed the charge sheet.
33. Thereafter, prosecution evidence was closed.
___________________________________________________________________________ State Vs. Sanjay Kumar and Others FIR No. 74/13, PS: Sagarpur Page 14 of 44 Statement of the Accused and Defence Evidence
34. Thereafter, statements of the accused were recorded under Section 313 CrPC, wherein they denied the allegations against them to be incorrect stating that no such incident as deposed to by the complainant had taken place and submitted that they have been falsely implicated in this case. Only accused Veera, Anandi, Usha and Indrapal expressed their desire to lead evidence in their defence. Accordingly, they have examined five witnesses in all.
35. DW 1 is Smt. Lakshmi. She deposed that in April 2013, accused Veera was arrested from her house in Dehradun.
36. DW 2 is Sh. Mahinder Mani. He also deposed that in April 2013, accused Anandi was arrested from her house in Dehradun.
37. DW 3 is Sh. Gulal Singh. He deposed that on 20.04.2013, accused Usha was arrested from near his shop in Dehradun.
38. DW 4 is Sh. Ravi Sharma. He also deposed that on 27.04.2013, accused Indrapal was arrested from his shop in Dehradun.
39. DW 5 is Sh. Lalit Kumar. He also deposed that on 27.04.2013, accused Indrapal was arrested from his shop in Dehradun.
___________________________________________________________________________ State Vs. Sanjay Kumar and Others FIR No. 74/13, PS: Sagarpur Page 15 of 44 Submission of the Parties
40. It is submitted by learned Addl. PP that a bare perusal of statements of victims PW 10 Preeti and PW 15 Simran makes out a case of kidnapping and their forcible marriage by the accused. It is further submitted that the two minor girls were got kidnapped by the accused persons in a planned manner and thereafter were sold for marriage. The deposition of the two victims has been read out at the bar to emphasize that the two minor girls were married against their wishes. It is further submitted that victim Simran was recovered by the police from the house of accused Pradeep and victim Preeti was left by accused Sanjay near the Police Station Kotwali, Dehradun, apprehending his arrest. It is repeatedly submitted that the prosecution has been successful in proving its case of kidnapping of the two minor girls and their forcible marriage by the accused persons in conspiracy with each other. It is repeatedly submitted that the prosecution has been successful in proving its case against all accused beyond reasonable doubt to the effect that the two minor girls were kidnapped pursuant to a conspiracy, so that they can be married against their wishes to accused Pradeep and Sanjay.
41. On the other hand, it is submitted by learned defence counsel for all the accused that entire case hinges on the testimony of victims PW 10 Preeti and PW 15 Simran. It is further submitted ___________________________________________________________________________ State Vs. Sanjay Kumar and Others FIR No. 74/13, PS: Sagarpur Page 16 of 44 that both the victims have not supported the prosecution version and have rather deposed that they left their houses as per their own accord with one Raj, who has not been arrested in the case. It is further submitted that prosecution has miserably failed to prove that the victims were subjected to trafficking, prostitution or even sexual assault at all. It is submitted that the two minors left their houses on their own with a boy, named Raj, who has not been arrested and for which none of the present accused is responsible. It is repeatedly submitted that if the deposition of the two victims is read in correct perspective, it is absolutely clear that no ingredient of any of the Sections, with which the accused have been charged, has been fulfilled. It is repeatedly submitted that the purpose of kidnapping/abduction mentioned in these Sections has not been proved in the case. It is repeatedly submitted that the victims have deposed that they were not subjected to illicit intercourse or unnatural lust. It is repeatedly submitted that there is no evidence of trafficking of the two girls. It is repeatedly submitted that the deposition of the police officials is only of formal nature regarding recovery of the girls and arrest of the accused and the entire case hinges on the testimony of the two victims, but they have not supported the prosecution version. It is also submitted that both the girls were medically examined and the doctors have deposed that they were not subjected to physical or sexual assault. It is repeatedly submitted that even the arrest of the accused persons ___________________________________________________________________________ State Vs. Sanjay Kumar and Others FIR No. 74/13, PS: Sagarpur Page 17 of 44 was wrongful and contrary to law, as they were arrested only on the basis of disclosure statements and from different places and later on their arrest was shown from altogether different places. My attention has been invited to the evidence led on record. It is repeatedly submitted that in the absence of any incriminating material against the accused, they may be acquitted.
42. In rebuttal, it is submitted by learned Addl. PP that the prosecution has been successful in proving its case of kidnapping of the minor girls and their marriage against their wishes.
Kidnapping of the Girls and Conspiracy relating thereto
43. It is the case of the prosecution that the two minor girls Preeti and Simran were kidnapped by the accused persons pursuant to the conspiracy to subject them to illicit intercourse, lust and prostitution or for being trafficked. In support of its case, my attention has been invited to the testimony of PW 10 Preeti and PW 15 Simran. However, the case of the defence is that the girls left their homes on their own with one Raj, who is not an accused, as he could not be arrested. It is the case of the defence that there is absolutely no evidence that any of the present accused was involved in the conspiracy to kidnap the two minor girls.
44. Let me take note of the law relating to conspiracy.
45. In an authority reported as Kehar Singh and others Vs. State (Delhi Administration) (1998) 3 SCC 609, while dealing ___________________________________________________________________________ State Vs. Sanjay Kumar and Others FIR No. 74/13, PS: Sagarpur Page 18 of 44 with the question of conspiracy, it was observed by the Hon'ble Supreme Court in paragraphs 275 and 276 as under:
"275. Generally a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the court must enquire whether the two persons are independently pursuing the same end or they have come together in the pursuit of the unlawful object. The former does not render them conspirators but the latter does. It is, however, essential that the offence of conspiracy requires some kind of physical manifestation of agreement. The express agreement, however, need not be proved. Nor actual meeting of two persons is necessary. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient. Gerald Orchard of University of Canterbury, New Zealand explains the limited nature of this proposition :
Although it is not in doubt that the offence requires some physical manifestation of agreement, it is important to note the limited nature of this proposition. The law does not require that the act of agreement ___________________________________________________________________________ State Vs. Sanjay Kumar and Others FIR No. 74/13, PS: Sagarpur Page 19 of 44 take any particular form and the fact of agreement may be communicated by words or conduct. Thus, it has been said that it is unnecessary to prove that the parties ''actually came together and agreed in terms'' to pursue the unlawful object : there need never have been an express verbal agreement, it being sufficient that there was ''a tacit understanding between conspirators as to what should be done''.
276. I share this opinion, but hasten to add that the relative acts or conduct of the parties must be conscientious and clear to mark their concurrence as to what should be done. The concurrence cannot be inferred by a group of irrelevant facts artfully arranged so as to give an appearance of coherence. The innocuous, innocent or inadvertent events and incidents should not enter the judicial verdict. We must thus be strictly on our guard."
46. Furthermore, in an authority reported as State (NCT of Delhi) Vs. Navjot Sandhu alias Afsan Guru, (2005) 11 SCC 600, while dealing with the ingredients and proof of conspiracy, it was observed by the Hon'ble Supreme Court in paras 98 to 101, as under:
"98. As pointed out by Fazal Ali, J., in V. C. Shukla v. State (Delhi Admn) : (SCC pp. 66970, para 8) "In most cases it will be difficult to get direct evidence of an agreement to conspire ___________________________________________________________________________ State Vs. Sanjay Kumar and Others FIR No. 74/13, PS: Sagarpur Page 20 of 44 but a conspiracy can be inferred even from circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence."
In this context, the observations in the case of Noor Mohammad Mohd. Yusuf Momain v. State of Maharashtra are worth noting :
(SCC pp.669700, para 7) "In most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts. Surrounding circumstances and antecedent and subsequent conduct, among other factors, constitute relevant material."
99. A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused in the offence of criminal conspiracy. The circumstances before, during and after the occurrence can be proved to decide about the complicity of the accused. (Vide Esher Singh v.
State of AP.)
100. Lord Bridge in R. v. Anderson aptly said that the evidence from which a jury may infer a criminal conspiracy is almost invariably to be found in the conduct of the parties. In Daniel Youth v. R. the Privy Council warned that in a joint trial case must be taken to separate the admissible evidence against each accused and the judicial mind should not be allowed to be influenced by evidence admissible only against other. "A codefendant in a conspiracy trial", observed Jackson, J, (US p.454), "occupies an ___________________________________________________________________________ State Vs. Sanjay Kumar and Others FIR No. 74/13, PS: Sagarpur Page 21 of 44 uneasy seat" and "it is difficult for the individual to make his own case stand on its own merits in the minds of jurors who are ready to believe that birds of a feather are flocked together". (Vide Alvin Krulewitch v. United States of America.) In Nalini case Wadhwa, J. pointed out, at p. 517 of SCC, the need to guard against prejudice being caused to the accused on account of joint trial with other conspirators. The learned Judge observed that: (SCC p. 517, para 583) "There is always difficulty in tracing the precise contribution of each member of the conspiracy but then there has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy."
The pertinent observation of Judge Hand in U.S. v. Falcone was referred to: (SCC p. 511, para 572) "The distinction is especially important today when so many prosecutors seek to sweep within the dragnet of conspiracy all those who have been associated in any degree whatever with the main offenders."
At para 518, Wadhwa, J., pointed out that the criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy. The learned Judge then set out the legal position regarding the criminal liability of the persons accused of the conspiracy as follows: (SCC p. 518, para
583) "One who commits an overt act with ___________________________________________________________________________ State Vs. Sanjay Kumar and Others FIR No. 74/13, PS: Sagarpur Page 22 of 44 knowledge of the conspiracy is guilty. And one who tacitly consents to the object of a conspiracy and goes along with other conspirators, actually standing by while the others put the conspiracy into effect, is guilty though he intends to take no active part in the crime."
101. One more principle which deserves notice is that the cumulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Of course, each one of the circumstances should be proved beyond reasonable doubt. Lastly, in regard to the appreciation of evidence relating to the conspiracy, the Court must take care to see that the acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution. K. J. Shetty, J., pointed out in Kehar Singh case that : (SCC p. 773, para 276) The innocuous, innocent or inadvertent events and incidents should not enter the judicial verdict."
47. Now the question is: Whether there is any evidence on record indicating any conspiracy by the accused persons in the leaving of their homes by the two girls? Whether the two girls were enticed or induced by any of the accused to leave their house? Whether Raj was acting at the instance of any of the accused when he asked the two minor girls to leave their house with him for ___________________________________________________________________________ State Vs. Sanjay Kumar and Others FIR No. 74/13, PS: Sagarpur Page 23 of 44 going to Haridwar? Whether the two girls left their homes on their own with Raj? I proceed to examine the evidence to find out if the evidence led on record make out a case of conspiracy against any of the present accused.
48. It may be noted that as argued by the defence, entire case hinges on the testimony of PW 10 Preeti and PW 15 Simran, the two minor girls. PW 10 Preeti has deposed about the circumstances in which she had left her home on 09.04.2013. She deposed that in 2013, she used to study in Great Mission School in ClassVIII and had begun conversation with a boy, named Raj, due to a missed call. She further deposed that she had also met him at Red Fort twothree times and had also gone to Red Fort on 08.04.2013. She further deposed that Raj told her that they should go to Nainital and she agreed. She returned to her house from Red Fort and asked her friend Simran, if she wanted to accompany her to Nainital, to which she agreed. On 08.04.2013 itself, Raj asked her to reach New Delhi Railway Station. Accordingly, on 09.04.2013, she along with Simran reached New Delhi Railway Station. She borrowed a mobile phone from somebody and called Raj and he told her to reach Old Delhi Railway Station and accordingly, they reached Old Delhi Railway Station. There, Raj had taken tickets and they went to Ghaziabad. In Ghaziabad, they met one P. K. Singh and stayed overnight over there. On 10.04.2013, at about 04:0005:00 AM, they were taken to ___________________________________________________________________________ State Vs. Sanjay Kumar and Others FIR No. 74/13, PS: Sagarpur Page 24 of 44 Haridwar. In Haridwar, Raj and P. K. Singh handed them over to Pooja and Pooja took them to the house of accused Sushma @ Usha.
49. In the crossexamination also, she conceded that she accompanied P. K. Singh and Raj as per own free will and they had not forced her. She has even deposed that she borrowed a mobile phone from somebody and called Raj. These acts show her maturity to act on her own, as she could even borrow a mobile from a stranger to make a call to Raj.
50. PW 15 Simran has also deposed that she left her house on the asking of PW 10 Preeti. She also deposed that Raj had taken them to the house of Sushma.
51. Thus, both the victims have deposed that they had left their houses on their own and accompanied a boy, named Raj, and first accompanied him to Ghaziabad and thereafter to Haridwar. The two witnesses have not named any other accused, who was involved in their leaving their houses, that is, the guardianship of their parents. There is absolutely no evidence either oral or documentary or circumstantial indicating the involvement of any of the accused as far as the leaving of their home by the two girls is concerned. Raj was a boy, who had started talking to PW 10 Preeti on mobile, she got acquainted with him and had also visited Red Fort with him twothree times. She had gone to the Red Fort with him on 08.04.2013 also and thereafter left her house on ___________________________________________________________________________ State Vs. Sanjay Kumar and Others FIR No. 74/13, PS: Sagarpur Page 25 of 44 09.04.2013. She asked PW 15 Simran to accompany her on 09.04.2013. PW 15 Simran has also not deposed that any of the accused or anyone else was in contact with her with a view to induce her to leave her house. As such, there is no evidence at all on the record that the two minor girls were enticed or induced by any of the accused to leave their house. In such a situation, though the consent of the minor is of no consequence but it does matter, if a minor girl of fair understanding leaves her house on her own and accompanies a person of her own free will for going to a certain place.
52. Let me take note of Section 363 IPC, which reads 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 fine."
53. In this regard, it is instructive to quote an authority reported as Thakorlal D. Vadgama Vs. State of Gujarat, (1973) 2 SCC 413, in which while dealing with the question of kidnapping of minor girl, it was observed by the Hon'ble Supreme Court in paragraph 10 as under:
".......The expression used in Section 361 IPC is "whoever takes or entices any minor". The word "takes" does not necessarily connote taking by force and it is not confined only to ___________________________________________________________________________ State Vs. Sanjay Kumar and Others FIR No. 74/13, PS: Sagarpur Page 26 of 44 use of force, actual or constructive. This word merely means, "to cause to go", "to escort" or "to get into possession". No doubt it does mean physical taking, but not necessarily by use of force or fraud. The word "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 its ultimate purposes 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 ___________________________________________________________________________ State Vs. Sanjay Kumar and Others FIR No. 74/13, PS: Sagarpur Page 27 of 44 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 or 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 defence and would not absolve him. The question truely falls for determination on the facts and circumstances of each case......."
54. PW 10 Preeti had visited Red Fort with Raj, with whom she had left her house twothree times, before leaving her house. On 08.04.2013, she also visited Red Fort with him. Thereafter, on 09.04.2013, she left her house. Thus, there is no evidence of any inducement. In an authority reported as State of Haryana Vs. Raja Ram (1973) 1 SCC 544, while dealing with the case of kidnapping of a minor girl, aged about fourteen years, the Hon'ble Supreme Court explained the object of Section 361 IPC in paragraph 8 as under:
"......The object of this section seems as much to protect the minor children from being seduced for 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 ___________________________________________________________________________ State Vs. Sanjay Kumar and Others FIR No. 74/13, PS: Sagarpur Page 28 of 44 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. 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 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."
55. It may also be noted that other witnesses are only witnesses of recovery and arrest of the accused and none of them have deposed about any circumstances, under which the two minor girls left their homes. Thus, the entire case hinges on the testimony of the two minor girl. Apart from their examinationinchief, they were also crossexamined by learned Addl. PP for the State and in that crossexamination also, there is nothing of any significance which could indicate the involvement of any other accused in any manner whatsoever in their leaving their houses. There is ___________________________________________________________________________ State Vs. Sanjay Kumar and Others FIR No. 74/13, PS: Sagarpur Page 29 of 44 absolutely no evidence at all indicating any conspiracy by any of the accused in the kidnapping of the two minor girls for the purposes of secretly confining them or for prostitution, illicit intercourse, trafficking etc. From the evidence of two minor girls, it is apparent that first they left their house on their own in the company of a boy, named Raj, who subsequently deserted them at Haridwar at the house of Sushma. Thus, there is absolutely no evidence that Raj was acting at the instance of any of the present accused.
56. From the aforesaid discussion, it is clear that two minor girls, namely, Preeti and Simran left their homes on their own in the company of a boy Raj. There is no evidence that in this act any of the accused was involved. There is absolutely no evidence on the record indicating any meeting of mind or agreement between all the accused in this regard. Thus, there is no evidence of any conspiracy between the accused to kidnap the two minor girls for any of the purposes mentioned in the Sections with which they are charged.
Proof of Purpose of Kidnapping, Sale or Purchase of Minors and their Marriage: Purpose linked to a Specific Section of IPC
57. It is the case of the prosecution that the two minor girls were kidnapped by the accused persons, so that they can be sold and purchased for prostitution or be subjected to trafficking and ___________________________________________________________________________ State Vs. Sanjay Kumar and Others FIR No. 74/13, PS: Sagarpur Page 30 of 44 prostitution or be wrongfully and secretly confined or be married against their wishes. It is the case of the prosecution that the two victims have deposed that they were sold by Sushma and others to Pradeep and Sanjay respectively. However, the case of the defence is that mere selling of a person, is no offence unless it is done with any of the purposes specified in the relevant Sections, though there is no proof of sale or purchase of the minors in the instant case.
58. I proceed to examine the relevant Sections and the case law on the issue.
Section 365 IPC reads as under:
"Kidnapping or abducting with intent secretly and wrongfully to confine person. Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
Section 366 IPC reads as under:
"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 ___________________________________________________________________________ State Vs. Sanjay Kumar and Others FIR No. 74/13, PS: Sagarpur Page 31 of 44 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."
Section 366A IPC reads as under:
"Procuration of minor girl. Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine."
Section 367 IPC reads as under:
"Kidnapping or abducting in order to subject person to grievous hurt, slavery etc. Whoever kidnaps or abducts any person in order that such person may be subjected, or may be so disposed of as to be put in danger of being subject to grievous hurt, or slavery, or to the unnatural lust of any person, or knowing it to be likely that such person will be so subjected or disposed of, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall ___________________________________________________________________________ State Vs. Sanjay Kumar and Others FIR No. 74/13, PS: Sagarpur Page 32 of 44 also be liable to fine."
Section 368 IPC reads as under:
"Wrongfully concealing or keeping in confinement, kidnapped or abducted person. Whoever, knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person, shall be punished in the same manner as if he had kidnapped or abducted such person with the same intention or knowledge, or for the same purpose as that with or for which he conceals or detains such person in confinement."
Section 370 IPC reads as under:
"Trafficking of person.(1) Whoever, for the purpose of exploitation, (a) recruits, (b) transports, (c) harbours, (d) transfers, or (e) receives, a person or persons, by First. using threats, or Secondly. using force, or any other form of coercion, or Thirdly. by abduction, or Fourthly. by practicing fraud, or deception, or Fifthly. by abuse of power, or Sixthly. by inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harboured, transferred or received, commits the offence of trafficking.
___________________________________________________________________________ State Vs. Sanjay Kumar and Others FIR No. 74/13, PS: Sagarpur Page 33 of 44 ......................................................................... ......................................................................."
Section 372 IPC reads as under:
"Selling minor for purposes of prostitution, etc. Whoever sells, lets to hire, or otherwise disposes of any person under the age of eighteen years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any age be employed or used for any such purpose, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall be liable to fine."
Section 373 IPC reads as under:
"Buying minor for purposes of prostitution, etc.(1) Whoever buys, hires, or otherwise obtains possession of any person under the age of eighteen years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any age be employed or used for any purpose, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
59. In a recent authority reported as Kavita Chandrakant ___________________________________________________________________________ State Vs. Sanjay Kumar and Others FIR No. 74/13, PS: Sagarpur Page 34 of 44 Lakhani Vs. State of Maharashtra and Another, (2018) 6 SCC 664, while dealing with the question of kidnapping or abducting or inducing a woman to compel her to marry, the Hon'ble Supreme Court observed in paragraph 17 as under:
"Apart from this, to constitute an offence under Section 366 IPC, it is necessary for the prosecution to prove that the accused induced the complainant woman or compelled by force to go from any place, that such inducement was by deceitful means, that such abduction took place with the intent that the complainant may be seduced to illicit intercourse and/or that the accused knew it to be likely that the complainant may be seduced to illicit intercourse as a result of her abduction. Mere abduction does not bring an accused under the ambit of this penal section. So far as charge under Section 366 IPC is concerned, mere finding that a woman was abducted is not enough, it must further be proved that the accused abducted the woman with the intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person 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. Unless the prosecution proves that the abduction is for the purposes mentioned in Section 366 IPC, the court cannot hold the accused guilty and punish him under Section 366 IPC."
___________________________________________________________________________ State Vs. Sanjay Kumar and Others FIR No. 74/13, PS: Sagarpur Page 35 of 44
60. Similarly, in an another authority reported as Lal Singh Vs. The State, AIR 1954 HP 43, the Hon'ble Himachal Pradesh High Court dealt with an identical issue of kidnapping of a minor, who was sold and subsequently married and while dealing with the case, it was observed in paragraphs 2 to 7 as under:
"2. It appears that the present petitioner along with 4 others viz. Narotam, Briju, Rewalu and Budhi Singh, was challaned under Section 366, read with Section 34, I.P.C. The case against them was that a minor girl named Shanti was kidnapped by Briju and Narotam from the lawful guardianship of her uncle Kesru (the girl's father being dead and mother having taken another man for her husband) and handed over to the present petitioner Lal Singh, and that Lal Singh sold her for Rs. 1600/ to Rewalu. The latter married the girl subsequently with the help of Budhi Singh.
3. The learned first class trying Magistrate discharged all the 5 accused. The State went up in revision against the discharge of the present petitioner Lal Singh alone, and the learned District Magistrate passed the order of further enquiry, as stated above. He has ordered further enquiry against the petitioner because he was of the view that the petitioner appeared to have committed an offence punishable under section 372, I.P.C.
4. That the girl in question was sold by the petitioner to Rewalu, and that the person sold ___________________________________________________________________________ State Vs. Sanjay Kumar and Others FIR No. 74/13, PS: Sagarpur Page 36 of 44 was under the age of 18 years are facts which admit of no doubt. Under Section 372, I.P.C., however it is not merely sale of a person under the age of 18 years which has been made penal, but the sale must be with intent or knowledge of likelihood that the person shall at any age be employed or used for the purpose of prostitution or for illicit intercourse with any person or any other unlawful and immoral purpose. It is not the case of the prosecution that the purpose was prostitution. The prosecution case appears to be that the intention of sale was that the minor girl be employed or used for illicit intercourse with any person or for any unlawful purpose. Of such an intention there is absolutely no evidence in the present case. On the contrary, it is clear from the testimony of the prosecution witnesses Mst. Darshanu (the mother of Rewalu) and Khalalu that the sale was made with intent that the girl be married to Rewalu.
5. If marriage was the intention with which the sale was effected, it could not be for the purpose of illicit intercourse as explanation II to Section 372 I.P.C. clearly shows. Nor can performance of marriage be treated as a purpose unlawful or immoral. It may be stated here in passing that admittedly 13 days after the sale the girl was in fact married to Rewalu. There is no suggestion that there was any intention that between the sale and marriage the girl be subjected to illicit intercourse, or that any illicit intercourse had taken place ___________________________________________________________________________ State Vs. Sanjay Kumar and Others FIR No. 74/13, PS: Sagarpur Page 37 of 44 during the interval. The act of sale of a minor girl not being criminal per se, but only on proof of one of the intentions mentioned in the section and it being clear from the prosecution evidence itself that none of the criminal intentions existed in the present case, the order of the learned District Magistrate directing further enquiry was totally misconceived.
6. The learned Government Advocate argued that the marriage that was subsequently performed was not a valid marriage according to the Hindu law because the girl was not given away by her lawful guardian, her uncle Kesru, but by Budhi Singh. It is however to be remembered that the point of time which is crucial for determining the culpability of a person under Section 372, I.P.C., is the one when sale takes place. It is at that point of time that the intention of the accused who sells the minor has to be taken into account. With regard to that, as adverted to above, it is clear from the testimony of the prosecution witnesses themselves that the intention of sale was none other than that the minor girl be subsequently married to Rewalu. That being so, it is immaterial if the marriage which subsequently takes place turns out to be a marriage not strictly in conformity with the tenets of the Hindu law.
7. The learned Government Advocate further relied upon -- 'Girdhari Lal v. Emperor', A.I.R. 1934 All 324 (A). That was a case which was ___________________________________________________________________________ State Vs. Sanjay Kumar and Others FIR No. 74/13, PS: Sagarpur Page 38 of 44 cited before, and relied upon by, the learned District Magistrate also. The sale in that case was of a married woman, and that is a circumstance which distinguishes it from the present case. The sale of a married woman cannot but be for illicit interpose or an unlawful and immoral purpose since the purpose in such a case could not be marriage but only that she be kept as a mistress. Indeed, it was specifically found in the reported case that the sale was made for the purpose of the married woman being kept as a mistress. In the present case the sale was not of a married but an unmarried person. Further, it has been seen that the purpose of the sale was not that the minor girl be kept as a mistress but that she be married to Rewalu. This case has therefore no application whatsoever."
(All underlinings by me for supplying emphasis).
61. Thus, in such cases of kidnapping or abducting any person, the prosecution must prove the purpose of kidnapping or abducting a person as mentioned in Sections 365, 366, 366A, 368, 370, 372, 373 etc. The prosecution must prove that the kidnapping or abduction was for any of the purposes mentioned in these Sections.
62. Regarding sale, PW 10 Preeti has deposed as under:
"......Pooja had taken me to the house of Sushma. We were kept there in the house of Sushma. In the house of Sushma I had met Veera, Indrapal, Pradeep, Lokesh, Anandi and ___________________________________________________________________________ State Vs. Sanjay Kumar and Others FIR No. 74/13, PS: Sagarpur Page 39 of 44 Ashu. Sushma, Anandi, Pooja, Indrapal and Veera sold me to Pradeep. At that time, Pradeep was accompanied by his mama Lokesh, his brother Deendayal and Ashu, friend of Pradeep. Thereafter, accused Pradeep had taken me to his Village at Biran. I was kept in the house of Pradeep for 1516 days. I used to live with the mother of accused Pradeep in his home and after 1516 days, police reached there on 28.04.2013......"
In her crossexamination by Addl. PP, she deposed that she was bought by Pradeep, Ashu, Lokesh and Deendayal and they took her with them. She also deposed that there was a fake marriage performed with Pradeep and she was told to live as his wife. She also deposed that she lived with Pradeep from 12.04.2013 to 28.04.2013 and he did not commit any wrong.
63. Similarly, PW 15 Simran has also deposed that at the house of Sushma, one aunt had brought a proposal for marriage and thereafter she was engaged to Sanjay and Sanjay had given rupees two lakh to Sushma and she was married to Sanjay. She also deposed that it was Sanjay, who had informed her parents and he told her that he had brought her in order to save her.
64. A bare perusal of the testimony of the two minor girls indicates that none of the present accused was involved in their kidnapping and they were involved only in their sale and their marriage to accused Pradeep and Sanjay. As far as sale of Preeti is ___________________________________________________________________________ State Vs. Sanjay Kumar and Others FIR No. 74/13, PS: Sagarpur Page 40 of 44 concerned, she deposed that she was sold to accused Pradeep, but in crossexamination, she conceded that no exchange of money had taken place in her presence. She also conceded that Pradeep and Lokesh never misbehaved with her and she was given food on time. She also conceded that she was never forced into any relationship. She also conceded that behaviour of family members of Pradeep was fine towards her. PW 15 Simran has also deposed that she was engaged to marry Sanjay and Sanjay gave rupees two lakh to Sushma and she was married off to Sanjay. In the cross examination by Addl. PP, she conceded that Sanjay told her that he had suspicion about her and that is why he had brought her in order to save her. She also conceded that he told her that she was absolutely safe with him. Thus, the present accused were involved only in the fake marriage of the two girls and not in their kidnapping. When the accused were not involved in the kidnapping, the charges with which they were charged do not stand proved. Even the charge of kidnapping a woman to compel her marriage is not proved, as the accused were not involved in kidnapping. The aforesaid Sections are attracted only when they are linked with kidnapping and abduction. Here, the only evidence is that the minors were sold and married by the accused. There are three groups of persons involved in the case, that is, Raj, with whom the girls had initially gone. Thereafter, Sushma @ Usha and others, with whom the girls had stayed on being taken there by Raj ___________________________________________________________________________ State Vs. Sanjay Kumar and Others FIR No. 74/13, PS: Sagarpur Page 41 of 44 and finally the buyers, that is, Pradeep, Sanjay and others. There is absolutely no evidence that all were acting in concert with each other. There is no evidence that they were involved in kidnapping. Thus, the requirement of the aforesaid Sections has not been fulfilled, as the kidnapping by the accused must be for some specified purpose, which purpose the prosecution has failed to prove. This is further compounded by the behaviour of accused Sanjay. Simran was bought by him and a fake marriage was performed and he also informed the police. From the testimony of the two victims, it is also clear that they were not subjected to any sexual intercourse. The only evidence on record is that Preeti was sold by Sushma to Pradeep and a fake marriage was performed. As far as Preeti is concerned, she also deposed that she was bought by Sanjay and Sushma and it was Sanjay, who had informed her parents and saved her. There is absolutely no evidence of any illicit intercourse. Thus, behaviour of accused Sanjay and Pradeep is destructive of the theory of conspiracy between all accused that the girls were kidnapped for the purpose of marriage without their consent, as projected by the prosecution.
65. Even otherwise, whatever evidence of sale, purchase and marriage is there on the record, that is also sketchy and short and does not make out a case of sale and purchase of minors in a convincing manner, which can be linked to any of the purposes mentioned in the aforesaid Sections.
___________________________________________________________________________ State Vs. Sanjay Kumar and Others FIR No. 74/13, PS: Sagarpur Page 42 of 44 Contradictory Case of the Prosecution
66. Even otherwise, the case of the prosecution is also contradictory in as much as if the sale and purchase of minor girl was for the purpose of prostitution or trafficking, then it cannot be for the purpose of marriage. If the purpose for kidnapping was marriage, then it cannot be for the purpose of prostitution, trafficking etc. It is in the deposition of Preeti and Simran that their marriages were performed with Pradeep and Sanjay, then marriage cannot be called an unlawful or immoral purpose. There is absolutely no evidence on record that the girls were subjected to prostitution, sexual intercourse, grievous hurt etc. There is no evidence of any brothel being run by any of the accused.
67. In view of the above discussion, I am satisfied that there is grave doubt about the truthfulness of the prosecution case as to the manner in which the two victims left their homes and as to whether the accused were acting in pursuance to a conspiracy to kidnap the two minors and to use them for any of the purposes mentioned in the Sections noted above.
68. Thus, the prosecution has failed to prove its case beyond reasonable doubt. Accordingly, accused are granted benefit of doubt and are acquitted.
69. Bail bonds of the accused are cancelled and their sureties are discharged. Endorsement, if any, be also cancelled.
___________________________________________________________________________ State Vs. Sanjay Kumar and Others FIR No. 74/13, PS: Sagarpur Page 43 of 44 Documents, if any, be released against proper signatures of the sureties.
70. As per provisions of Section 437A CrPC, accused are directed to furnish personal bond in the sum of Rs.30,000/ respectively with one surety in the like amount to appear before Hon'ble Appellate Court, as and when they receive notice of appeal.
71. File be consigned to Record Room.
Announced in open Court (O. P. Saini)
today on 22.11.2018 Addl. Sessions Judge/
Spl. Judge (CBI04)
New Delhi
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