Delhi District Court
State vs . Neetu on 12 May, 2014
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE(NDPS)
DWARKA COURTS, NEW DELHI
SC No.46/1/13
FIR No.246/12
U/s 363/366/506 IPC
PS Chhawla
State
Vs.
Neetu s/o Satpal
.......... Accused
Challan filed on : 14.06.2013
Reserved for order on : 29.04.2014
Judgment delivered on :12.05.2014
JUDGMENT
Briefly stated the facts of the prosecution case are that on 04.11.2012,Munni Devi visited PS alongwith 45 persons and disclosed that her daughter Radha aged about 14 years has gone missing as she has not come back from her school. One written complaint Ex.PW3/A was handed over to SI Sunil in which it has been alleged that on 4.11.12 when she returned from school, she did not find her daughter Radha aged about 14 years at home. She made State Vs. Neetu FIR no. 246/12 Page No.1 of 27 her search in the vicinity as well as at the places of her relatives but she could not find her. She has given description of her daughter and stated that she suspects that her daughter Radha has been taken away after enticing and alluring by someone. On the basis of this complaint, present case was registered. During investigation, IO came to know that the prosecutrix has been taken to village Harsanad District Shamli. On 27.4.2013 accused was arrested from village Baroli where he had come to attend the marriage. On 28.4.13, prosecutrix Radha came to PS with father of accused and told that she has already solemnized her marriage with accused Neetu. Thereafter, she was medically examined. After completion of investigation, chargesheet was filed.
2. This case being triable by the court of session, after committal proceedings, it was committed by the Ld.MM and received by the court of sessions on 02.07.2013.
3. The charge against the accused Neetu was framed u/s 363/366/506 IPC on 10.12.2013 to which the accused pleaded not guilty and claimed trial. Hence the case was fixed for Prosecution Evidence.
State Vs. Neetu FIR no. 246/12 Page No.2 of 27
4. The prosecution, in order to prove its case against accused Neetu, in all has examined as many as 10 witnesses.
5. PW1 Ms. Kamla has deposed that as per school record the date of birth of Radha is 26.8.99 and copy of relevant entry is Ex.PW1/A.
6. PW2 Ct. Pradeep Kumar has deposed that on 27.4.13 he alongwith SI Sunil and Ct. Satbir went to Baraut, Bagpat and with the help of local police reached in village Badoli where the secret informer pointed out a boy who was apprehended. His name came to know as Neetu. He was arrested vide memo Ex.PW2/A and his personal search was conducted vide memo Ex.Pw2/B. His disclosure was recorded which is Ex.PW2/C.
7. PW3 Munni Devi has deposed that on 4.11.12 accused Neetu kidnapped his daughter Radha and he extended threatening to him to withdraw the present case from the police. The age of her daughter was 14 years. She searched her daughter but could not trace her out. She made complaint to PS Chhawla which is State Vs. Neetu FIR no. 246/12 Page No.3 of 27 Ex.PW3/A. On the same day evening, she came to know that accused Neetu had taken her daughter in a WagonR car. Police talked to him on mobile but he refused that his daughter is with him. She further deposed that police went to the village of accused in UP and came to know that Neetu had brought the girl but he removed her to somewhere else. During investigation she received a call from her daughter who disclosed her to withdraw the case against the accused, if she want to meet her. She asked her daughter as to where she is and she replied that she does not know the place but accused is staying that it is Dehradun. She has further deposed that after about one month accused started threatening her that he will kill her and her son Pramod. She went to PS and lodged a complaint regarding receiving threatening from the accused. After about one and half to two months, her daughter was recovered by the police. Recovery memo is Ex.PW2/B. In cross examination she has deposed that she had seen the accused in a function held at the house of his brother in law about 1 month ago from the date of kidnapping of her daughter by him. She denied the suggestion that accused Neetu was known to her earlier. She denied the suggestion that she tried to engage her daughter with accused for marriage. She has no birth certificate of her daughter. It is correct that she did not file any age proof of her State Vs. Neetu FIR no. 246/12 Page No.4 of 27 daughter at the time of getting her admission in the school. She denied the suggestion that when her daughter went with accused, she was 18 years old. She does not know whether her daughter had fallen in love with the accused Neetu and had accompanied with him on her own will.
8. PW4 Ct.Satyavir Singh has deposed that he joined the investigation with IO SI Sunil and reached in PS Barot from where secret informer and two constable accompanied them and they reached in village Badoli where one boy was apprehended whose name came to know as Neetu. He was arrested vide memo Ex.PW2/A and his personal search was conducted vide memo Ex.PW2/B.
9. PW5 Dr.Someshwar Bordoloi has deposed that he prepared the MLC of Radha which is Ex.PW5/A.
10. PW6 Radha is the prosecutrix who has stated that her date of birth is 26.8.1999. She was studying in 8th Class in Nagar Nigam Sarvodaya Vidyalaya. Neetu had come to his relative residing in their locality on 4.11.2012. On that day accused Neetu had made a State Vs. Neetu FIR no. 246/12 Page No.5 of 27 call on the mobile phone of her mother and stated that if she would not come at bus stop Chhawla, he would took her forcibly. On this due to fear, she went to bus stop Chhawla in between 11 a.m to 12 noon. Accused Neetu met her and asked her to go with him. She accompanied the accused due to fear and he took her to Village Harsanapur, District Muzaffarnagar UP. Her mother lodged a complaint with Police. Accused had married with her forcibly. After about 23 months, she alongwith Satpal, father of accused came to PS Chhawla. Her ossification test was got conducted and she was also medically examined. Her statement was also got recorded by the police in the court. Vol. She gave a false statement to the Magistrate as she was threatened by accused and she gave statement due to fear. Her statement us/ 164 Cr.PC is Ex.PW6/A. In cross examination she has stated that she has studied in two schools initially in Radhey Shyam Park School and secondly in Nagar Nigam Sarvodaya Vidyalya. She took admission in Radhey Syam Park School in class Ist and in Nagar Nigam in class 6th. She admitted that complaint Ex.PW6/DA bears her signatures at point A and the same was made by her to the police. VOL. Her said complaint was false and she made the same due to fear of accused. She denied the suggestion that she is about 20 years old in the year 2012. She has further denied the State Vs. Neetu FIR no. 246/12 Page No.6 of 27 suggestion that she had stated her correct age as 1718 years to the Magistrate during her statement. She further denied the suggestion that she had gone with accused at her own and there was no threat from accused. She denied the suggestion that she went with accused as her family members had engaged her with the accused one year prior to the incident. She denied the suggestion that she married to accused on her own will or that she was living happily with him. She denied the suggestion that she deposed under the pressure of her mother and other family members.
11. PW7 Ct. Ritu has taken the prosecutrix to RTRM Hospital for her medical. She has further deposed that on 29.4.13, statement of prosecutrix u/s 164 Cr.PC was got recorded. In cross examination she has stated that the prosecutrix was not willing to go to her parental house and she was ordered to be taken to Nari Niketan. On the day when the prosecutrix was brought by them to the court from Nari Niketan, she was not seemed to be in any fear or pressure as observed by her.
12. PW8 HC Ganga Sahay has deposed that he recorded the FIR of this case. The copy of FIR is Ex.PW8/A. State Vs. Neetu FIR no. 246/12 Page No.7 of 27
13. PW9 SI Sunil has deposed that on 4..11.2012 one lady Munni Devi came to PS alongwith 45 persons and disclosed that her daughter Radha aged about 14 years is missing as she has not come back from her school. She handed over complaint Ex.PW4/A to him on which he made endorsement Ex.PW9/A and got the FIR recorded. She gave her biodata on site of Delhi Police, copy of the same is Ex.PW9/B. On 6.11.2012 she came to know that accused used to visit in a house situated in the neighbourhood of the parents of prosecutrix and the parents of prosecutrix told him that their daughter was taken by him. He went to village Harsana but accused could not be traced. During February, mother of prosecutrix told him that accused Neetu used to extend threats to her and her family members if the report will be made to the police. The written complaint is Ex.PW9/C. During investigation, he received the marraige certificate of prosecutrix Radha and Neetu Kumar. He has further deposed that on 26.2.13 he went to the native village of accused and he came that he will come with prosecutrix to village Baroli in a marriage. He alongwith his team reached there and arrested him vide memo Ex.PW2/A and conducted his personal search vide memo Ex.PW9/D. His disclosure statement Ex.PW2/B State Vs. Neetu FIR no. 246/12 Page No.8 of 27 was recorded. He has further deposed that on 28.4.13 prosecutrix Radha came to PS alongwith father of accused. He prepared recovery of prosecutrix Ex.PW3/B. Thereafter she was medically examined. Her statement u/s 164 Cr.PC was got recorded. The prosecutrix refused to go to her parental house so she was taken to Nari Niketan. He got the date of birth of prosecutrix from Nigam Pratibha Vidyalya which is 26.8.99, the certificate is Ex.PW1/B. School record is Ex.PW1/A and report card is Ex.PW9/E. He got recorded the statement u/s 164 Cr.PC of prosecutrix. He also got conducted the ossification test.
14. PW10 Sh Gaurav Gupta, Ld.MM has deposed that he recorded the statement of the prosecutrix u/s 164 Cr.PC which is Ex.PW6/A.
15. After completion of evidence of the prosecution, statement of accused u/s 313 Cr.PC was recorded in which the accused has stated that he has been falsely implicated in this case. He did not opt to lead defence evidence. Therefore the case was fixed for final arguments.
State Vs. Neetu FIR no. 246/12 Page No.9 of 27
16. I have heard the arguments from the Ld. Counsel for the accused as well as Ld. APP for the State. During the course of arguments Ld. counsel for the accused has stated that in this case the prosecutrix has changed her statement from time to time. He has drawn the attention of the court on her statement recorded u/s 164 Cr.PC and the statement she made before the court and stated that she has deposed entirely different from her statement u/s 164 Cr.P.C. Ld. Counsel has further stated that the prosecutrix was tutored by her mother before entering in the witness box as she had refused to go to her parents home after she was produced in the court for her statement u/s 164 Cr.PC. Ld. Counsel has further submitted that the prosecutrix is major and that the prosecution has failed to prove that that she was minor. It is further submitted that accused may kindly be acquitted.
17. On the other hand Ld. APP for the State has submitted that the age of the prosecutrix is material in this case and when she was taken away by the accused, her age was not 18 years. So, accused may kindly be convicted.
18. On analyzing the testimonies of witnesses, it is revealed State Vs. Neetu FIR no. 246/12 Page No.10 of 27 that PW6 Radha is the prosecutrix and PW3 Munni Devi is her mother and they are the main star witness of the prosecution and the case of the prosecution hinges on their testimonies. Charge has been framed in this case u/s 363/366/506 IPC. I have gone through the evidence as well as documents on record. In this case prosecutrix PW6 Radha has stated that on 4.11.12 Neetu had made a telephonic call on the mobile phone of her mother and stated that if she would not come at bus stop Chhawla, he would take her forcibly and due to fear she went to the bus stop in between 11 a.m to 12 noon where accused asked her to accompany him and due to fear he accompanied and he took her to village Harsanapur. After 23 months she came to PS alongwith Sh Satpal, father of accused. She gave false statement to the Magistrate as she was threatened by the accused and she gave the statement under fear. I have considered her statement recorded u/s 164 Cr.PC by PW10 Sh Gaurav Gupta, Ld. MM . The said statement is reproduced as under: Statement of prosecutrix Radha d/o Sh Basdev R/o village Harsana Shyami Teh. Karana UP.
'meri umar 17 ya 18 varsh hai. Pichchle karib ek saak se mai Neetu Kashyap s/o Satpal Kashyap ko janti hu. Mai apne mata pita ke saath Chhawla, Delhi mai Rehti thi. Vahi padosh main Neetu ka ek rishtedar rehta tha jahan meri Neetu se jaan State Vs. Neetu FIR no. 246/12 Page No.11 of 27 pehchan hui. Mai aur Neetu ek dushre ko pasand karne lage aur hamne shadi karne ki chhoch lee. Mere mummi papa ish shadi se khush nahi the aur vo kahin aur meri shadi zabardasti ker dena chahte the. Ishliye mai apne mummi papa ke ghar se apni marzi se bhaag gaye. Maine Neetu ko bus adde par bula liya tha. Vahan se hum Neetu ke ghar Harsana, UP chale gaye. Phir 23 din baad maine Neetu se Muzaffarnagar ki ek court mai shaddi kar lee. Mujhe shadi ki ya apne mummy papa ke ghar se bhagne ki tariq yaad nahin hai. Shayad October ya November 2012 thi. Shaddi ke baad se main apne sasural main khushi se reh rahi hu. Mai apne mummy papa ke pass nahi jana chahti. Unhone meri dobara zabardasti shadi krane ki dhamki dee hai'.
Sd/ sd/
RO&AC (Gaurav Gupta)
MM/Dwk/Delhi
29.04.2013
19. The above statement was recorded by Sh.Gaurav Gupta, Ld.MM when the prosecutrix was produced before him first time after about 5 months from the date of her elopement with accused Neetu. On perusal of the observations of Ld.MM, it is crystal clear that this statement was recorded by him without any pressure, threat or fear of anybody upon prosecutrix. This fact is clear from the cross examination of PW6 Ct. Ritu who has stated that when the State Vs. Neetu FIR no. 246/12 Page No.12 of 27 prosecutrix was brought by her to the court from Nari Niketan, she was not seemed to be in any fear or pressure as observed by her. The statement of prosecutrix recorded u/s 164 Cr.PC is entirely different from the statement made by him before the court. The prosecutrix in her statement u/s 164 Cr.PC has stated that she called Neetu at the bus stand and then they went to village Harsana while in the statement recorded before the court she has stated that accused Neetu made a call on the mobile of her mother and called her at the bus stand and then he took her to village Harasana under threat. The prosecution has not disclosed as to what threat was extended by accused to her by the accused in her examination in chief. She has also not disclosed as to on whhich mobile number accused had made call. Further, in her statement u/s 164 Cr.PC she has stated that she accompanied the accused to village Harsana on her own wish and will as her parents were getting her married forcibly somewhere else. In statement u/s 164 Cr.PC she has stated that they started liking and thought of marrying each other and she solemnized her marriage with Neetu in a court situated in Muzaffarnagar while before court she has stated that accused Neetu has forcibly solemnized marriage with her. Considering the statement of prosecutrix, it is emphatically clear that she has changed her stand at every nook and corner. It is State Vs. Neetu FIR no. 246/12 Page No.13 of 27 held by our own Hon'ble High Court in case Raj Kumar Vs. State 1997(2) CC Cases HC 291 that: 'Where the PW has been absolutely inconsistent and has been changing his stand from time to time, he cannot be regarded as reliable and trustworthy witness of the occurrence'
20. It is also held by Hon'ble Apex Court in the case of Suraj Mal Vs. Delhi Admn. 1997 Criminal Law Journal 108(SC) CC Cases that : 'When the prosecution witness gives two different statements in their testimonies either at one or two suggest, therefore the testimony become unreliable and unworthy of credit and in the absence of any circumstances no conviction could be made therein'.
21. In the present case also, the prosecutrix has given different statements and therefore she cannot be regarded as reliable and trustworthy witness. Considering her statement recorded by Ld.MM u/s 164 Cr.PC that she had gone with accused on her own free will. They got married in the court. Her parents had fixed her engaged somewhere else, it is manifest that she herself had State Vs. Neetu FIR no. 246/12 Page No.14 of 27 accompanied the accused in this case on her own free will and married him.
22. The prosecutrix has admitted in her cross examination that complaint Ex.PW6/DA bears her signatures at point A and the same was made by her to the Police. Vol. Her said complaint was false and she made the same due to fear of accused. She did not disclose as to what fear she had on 30.11.2012 when the complaint was made by her. She eloped with accused on 4.11.2012 and returned to PS with father of accused on 28.04.2013. I have perused the said complaint wherein she has mentioned her age as 20 years and that her engagement ceremony was done with accused Neetu about one year back and now her parents wants her to marry somewhere else and they want to extract huge amount by marrying her there. She had married with Neetu on her own will and now she is happy. She does not want any action against Neetu or his family members. This letter was given by her to Police Station Chhawla. This complaint made on 30.11.12 by the prosecutrix to SHO PS Chhawla also indicate that she accompanied accused with her own free will and even married with him as per her wish. It also seems that the prosecutrix was in deep love with accused Neetu. The PW3 mother of the prosecutrix did State Vs. Neetu FIR no. 246/12 Page No.15 of 27 not state before the court that her daughter was taken away by accused after enticing her forcibly for getting married with him. PW6 has also not stated that she was allured or enticed by the accused. She has made contradictory statement in this case. When the prosecutrix was produced before the court for her statement, she was not ready to go with her parents and this fact is clear from the cross examination of PW6 Ct. Ritu who has stated that the prosecutrix was not willing to go to her parental house and she was ordered to be taken to Nari Niketan and PW9 SI Sunil has also stated that the prosecutrix refused to go to her parental house so she was again taken to Nari Niketan. In consideration of the statements of PW3 Munni and PW6 Radha, no substantive evidence has come against the accused that he had taken away the prosecutrix forcibly against her will with intent to marry her. The statement made by the prosecutrix before the court seems to be tutored one.
23. The contention of the Ld. APP for the State is that the age of the prosecutrix was below 18 years. I have also considered this aspect of case. In the initial statement, complainant has stated the age of the prosecutrix as 14 years. The prosecutrix has stated her age as 17 or 18 years at the time of recording her statement u/s 164 Cr.PC by the Ld. MM. In complaint Ex.PW6/DA, her age is mentioned as State Vs. Neetu FIR no. 246/12 Page No.16 of 27 20 years. In marriage certificate issued by Arya Samaj Adarsh Colony, Muzaffarnagar, the age is mentioned as 22 years. On MLC the age is 16 years. There are different ages of prosecutrix on each document.
24. The Prosecution has also examined PW1 Ms. Kamla from MCD Primary School and she has stated that as per record Radha was admitted in school on 25.7.2005 in Ist class. Her date of birth is 26.8.1999. The certificate issued in this respect is Ex.PW1/B. In cross examination she has stated that an affidavit was furnished by the father of the girl. She has not brought the said affidavit. She had not verified the date of birth of Radha at her own level. She admitted that the certificate Ex.PW1/B is prepared by their school teacher Chandra Kant. The matter pertains to 17 years old, she cannot say if the father of Radha had produced any affidavit regarding her date of birth or the date of birth was recorded only on the oral submissions of her father. From the cross examination of PW1 it is crystal clear that she does not know as to how the date of birth of the prosecutrix was recorded in the register Ex.PW1/A i.e. as to whether it was recorded on the basis of certificate issued by MCD or on the basis of affidavit of the father of prosecutrix. PW6 Munni Devi, mother of State Vs. Neetu FIR no. 246/12 Page No.17 of 27 the prosecutrix has stated that she has no birth certificate of her daughter. It is correct that she did not file any age proof of her daughter at the time of getting her admission in the school. Statement of PW6 clears that there was no birth proof of prosecutrix which was filed at the time of getting admission. PW6 Radha has stated that she has studed in two school, initially in Radhey Shyam Park School and secondly in Nagar Nigam Savrodaya Vidyalya. She took admission in Radhey Shyam Park School in class Ist and in Nagar Nigam Sarvodaya Vidyalya in class 6th. PW9 SI Sunil has stated that he did not come to know about any school of Radhey Shyam Park during the course of investigation. As per statement of prosecution, she was admitted in Ist class in Radhey Shyam Park School but the prosecution has not produced any age proof from that school. In report card Ex.PW9/E the date of birth is mentioned as 28.8.99 while in copy of register Ex.PW1/A it is mentioned as 26.8.99. In consideration of the above evidence, there is no authentic proof on record for the date of birth of prosecutrix. The prosecution could not therefore prove that the prosecutrix was minor.
25. The prosecution has also got conducted the ossification test of the prosecutrix in this case wherein her age is recorded State Vs. Neetu FIR no. 246/12 Page No.18 of 27 between 17 to 19 years. This test was conducted after about one year of elopement of prosecutrix with accused. The prosecutrix has given contradictory statement in this case. There is no authentic age proof of the prosecutrix in this case. Section 363 IPC provides for the punishment for kidnapping. Kidnapping is defined u/s 361 which reads as under: 'Kidnapping from lawful guardianship - Whoever takes or entices any minor under sixteen years of the 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 unlawful 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 or custody of such minor or other person. Exception - This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who is good faith believes himself to be entitled to lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.'
26. A bare perusal of the above section would show that in order to constitute kidnapping, it was necessary that there should be either taking away of minor from the custody of lawful guardian without consent of the lawful guardian or enticing the minor so that State Vs. Neetu FIR no. 246/12 Page No.19 of 27 minor leaves the custody of lawful guardian under enticement. Presuming the deposition of prosecution and her mother regarding age, the age of prosecutrix seems to be between 16 to 19 years. 'Enticing' is defined in Chambers Twenty First Century Dictionary as to 'temp or persuade by arousing hopes or desire by promising a reward'. In Wester Dictionary 'enticement' is defined as to 'cause a person to cease resisting and to do as one wishes by offering some inducement'.
27. In "Shyam & Another Vs. State of Maharashtra", 1995 Criminal Law General 3974, the prosecutrix was a grown up girl, though she had not touched 18 years of age. She claimed during trial that she was kidnapped under threat. The evidence produced during trial showed that she was seen going on the bicycle of the accused. The Hon'ble Supreme Court noted that it was not unknown to her with whom she was going and therefore, it was expected of her then to jump down from the bicycle or put up the struggle and in any case raise an alarm to protect herself. As no such steps were taken by her, the Hon'ble Supreme Court felt that she was a willing party to go with the appellants of her own and, therefore, there was no taking out of the guardianship. The appellants were acquitted of State Vs. Neetu FIR no. 246/12 Page No.20 of 27 the charge under Section 366 of IPC.'
28. In "State of Karnataka vs. Sureshbabu", 1994 Crl.L.J.1216(1), it was found that the girl went with the accused voluntarily. It was held by the Hon'ble Supreme Court that the requirement of Section 366 of IPC is that taking or enticing away a minor out of the keeping of the lawful guardianship was an essential ingredient of the offence of kidnapping. It was held that in such a case, it is difficult to held that the accused had taken her away from the keeping of her lawful guardian and something more has to be shown in a case of this nature, like inducement.
29. In "Mahabir vs. State" , 55(1994)DLT 428, the appellant and the prosecutrix were known to each other. The appellant took the prosecutrix to a place outside Delhi where they stayed for about fifteen days and had sexual intercourse with each other. The appellant was convicted under Sections 366 and 376 of I.P.C. A learned Single Judge of this Court noticed that she had gone to Railway Station, had stood there with the appellant who also went to purchase tickets and then she had travelled with him in a compartment shared by other persons. She had then gone to a house State Vs. Neetu FIR no. 246/12 Page No.21 of 27 in a tonga and yet she did not lodge any protest and made no attempt to flee despite having ample time and opportunity. The learned Single Judge noted that on the day of reckoning, she surely had crossed mark of sixteen years and since she was all along a willing party, the appellant was acquitted of both the charges against him. Thus, despite the prosecutrix being less than eighteen years of age, the appellant was acquitted not only of charge under Section 376 but also of the charge under Section 366 of I.P.C.
30. In "Piara Singh vs. State of Punjab", 1998(3) Crimes 570, the High Court found that the prosecutrix was more than sixteen years of age at the time of this incident, though, the case of the prosecution was that she was fourteen years of old at that time. Since the High Court came into conclusion that no force was used in having sexual intercourse with him, the appellant was acquitted not only of charge under Section 376 but also of charge under Section 366 and 366 A of Indian Penal Code.
31. In "Bala Saheb vs. State of Maharashtra", 1994 Criminal Law General 3044, it was found that the prosecutrix accompanied the appellant/accused from her village and stayed with him for two to three days. It was held that these State Vs. Neetu FIR no. 246/12 Page No.22 of 27 circumstances clearly show that offence under Section 363 or 366 of I.P.C. was not made out.
32. In case Law Vivek Kumar @ Sanju and Anjali @ Afsana VS. The State, Govt. of NCT of Delhi and Tahir Ali it is stated in head note that : 'Criminal kidnapping Sec. 363 IPC for quashing FIR u/s 363 IPC alleging commission of offence of kidnapping of petitioner no.2 by petitioner no.1 Held, for constituting kidnapping it was necessary that there should be either taking away of minor from custody of lawful guardian without their consent or enticing minor so that minor leaves custody of lawful guardian under enticement reason behind leaving house by petitioner no.2 was fear and threat to her life and not enticing away. Falling in love does not amount to enticing - further providing shelter to driven away girl not amount to kidnapping or enticing petition allowed'.
In case law Mohar Singh @ Pappu Vs. State, MANU/DE/2138/2002 it is stated in head note that : 'Criminal - Benefit of doubt - Sec. 34, 363, 366 and 376 of IPC, present appeal has been filed against order whereby appellants are convicted for offence punishable u/s 34, 363, 366 and 376 IPC - Held, prosecution has failed to prove with certainty that age of prosecutrix was below 18 years at time of incident - Further, statement of prosecutrix was not reliable as her father himself stated that girl had taken away some clothes and a sum amount State Vs. Neetu FIR no. 246/12 Page No.23 of 27 which shows that she had willingly gone with accused - Not only that prosecutrix did not raise any alarm or protest for two - three days during which period she remained in Chanderlok Park as stated by her - She could raise alarm to attract attention of public - In these circumstances it can be safely concluded that she roamed with accused persons of her own accord and since she has not been proved to be minor, accused persons are entitled to be given benefit of doubt - Accordingly, appeals are acceptedImpugned order of conviction and sentence is hereby set aside appellants are acquitted.
33. In case law S Varadarajan Vs. State of Madras, MANU/SC/0081/1964 it is stated in head note that : 'the case dealt with the meaning of take out of keeping of the lawful guardian under sec 361 IPC It was held that where a minor girl was allegedly taken away by the accused persons from the protection of her father and where the girl had a capacity to know what she was doing and had voluntarily joined the accused, then in such case it could not be said that the accused had taken her away from the protection of her lawful guardian within the meaning of sec.361 of the Code'.
34. In the present case, the prosecutrix has given contradictory statements. In statemnet u/s 164 Cr.PC, she has clearly stated that she accompanied the accused on her own freewill and solemnized marriage with him. She has given the reason that her State Vs. Neetu FIR no. 246/12 Page No.24 of 27 parents had forcibly fixed her marriage with someone else.
35. In case Shyam & Ors Vs. State of Maharashtra (supra), it is stated that the prosecutrix was a fully grown up girl may be one who had yet not touched the age of 18 years but still she was in the age of discretion, sensible and aware of the intention of the accused therein that he was taking her away for a purpose. It was not unknown to her with whom she was going in view of his earlier proposal. Thus it was expected of her to jump down from the bicycle or put up a struggle and in any case raise alarm to protect herself. Since no such step was taken up by her she seemed to be a willing party to go with Shyam the appellant therein on her own and that there was no 'taking' out of guardianship of her mother'.
36. In the present case, the prosecutrix PW6 Radha seems to be aged about 18 years. She was very well aware as to what she was doing and she voluntarily joined the company of accused Neetu. She was fully grown up girl may be one who had yet not touched the age of 18 years but still she was at the age of discretion, sensible and aware as to what she is doing. This fact is manifest from her deposition recorded in the court as well as statement u/s 164 Cr.PC State Vs. Neetu FIR no. 246/12 Page No.25 of 27 recorded by the Ld. MM. It is also clear that she was in love with accused Neetu which does not amount to enticing. Accused has provided her shelter and as per statement u/s 164 Cr.PC they both married in a court. The mother of the prosecutrix has not stated that Radha was taken away by accused Neetu after enticing her. The deposition regarding age is different and it seems that she was about 18 years of age at the time of incident.
37. In view of the evidence on record and specifically when the prosecutrix and accused have married and in marriage certificate her age is mentioned as 22 years, I am therefore of the view that prosecutrix was a fully grown up girl of about 18 years as on the date of incident, sensible and she voluntarily accompanied the accused on her own free will and therefore accused is entitled for the benefit of doubt in this case. The prosecution has also not proved on record the call details of the mobile number of mother of prosecutrix when allegedly accused has made call to her and threatened her to be killed alongwith her son Pramod. I therefore give the benefit of doubt to accused Neetu and he is acquitted for the commission of offence punishable u/s 363/366/506 IPC.
38. Accused is in JC in this case. He is directed to furnish State Vs. Neetu FIR no. 246/12 Page No.26 of 27 personal bonds in a sum of Rs.25,000/ with one surety in the like amount in view of the provisions contained u/s 437A Cr.P.C.
File be consigned to record room.
Announced in the open Court on 12.05.2014 (SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE/ SPECIAL JUDGE(NDPS) NEW DELHI State Vs. Neetu FIR no. 246/12 Page No.27 of 27