Delhi District Court
State vs Sudhir Kumar @ Bholu S/O. Sh. Ganga ... on 24 May, 2012
IN THE COURT OF SHRI SANJAY GARG : ADDITIONAL SESSIONS JUDGE -
01 (EAST) :KARKARDOOMA COURTS : DELHI
SC No. 123/11
FIR No. 96/09
PS New Ashok Nagar
Under Section : 363/366/376 IPC
State Versus Sudhir Kumar @ Bholu S/o. Sh. Ganga Jagdish,
R/o. Village Gudhan Pur, Narha Thana, Miyaganj,
Distt. Kannauj, U.P.
Date of Institution of Case : 13.9.11
Date on which Judgment Reserved : 24.5.12
Date on which Judgment Delivered : 24.5.12
J U D G M E N T :
1. The case of the prosecution is based upon the complaint made by PW2 Sh. Jai Prakash on 27.3.09 mentioning that his daughter Amrita Sharma aged 16 years who was studying in 11th class, on 18.3.09 at about 1.30 p.m alongwith his wife went to Govt. Girls Sr. Sec. School, New Kondli to take her exam but did not return thereafter. He has made efforts to trace her but could not found her. He is sure that a boy named Bholu has kidnapped his daughter after enticement. ASI Shankar Lal got FIR registered, after preparing rukka on this complaint. On 29.4.10 on the identification of complainant prosecutrix was recovered. Her medical examination was got done and thereafter she was produced before Ld. M.M, who recorded her statement u/s. 164 CrPC. On 29.7.10 accused applied for anticipatory bail and he was admitted on anticipatory bail on 10.8.10. After investigation police filed chargesheet against this accused u/s. 363/366/376 IPC.
2. Charge u/s. 363/366/376 IPC was given to accused, to which he pleaded not guilty and claimed trial.
3. To prove its case prosecution examined six witnesses. PW1 HC FIR No. 96/09 State Vs. Sudhir Kumar @ Bholu page 1 of page 6 Rajender Singh was duty officer on 27.3.09. He proved FIR Ex.PW1/A and endorsement on rukka Ex.PW1/B. PW2 Sh. Jai Prakash is the complainant who proved his complaint Ex.PW2/A. PW3 Smt. Amrita is the prosecutrix, she admitted her signatures on her statement Ex.PW3/A recorded u/s. 164 CrPC. PW4 Smt. Manju Devi is the mother of the prosecutrix. PW5 Sh. Ashani Udinia, Teacher, Govt. Girls Senior Secondary School, New Kondli proved the copy of the admission register Ex.PW5/A and certificate given by vice Principal Ex.PW5/B. PW6 ASI Asha Sharma is the IO, she proved arrest memo of accused Ex.PW6/A, seizure memo Ex.PW6/B vide which pulandas handed over to her by doctor after medical examination of accused, was taken into possession.
4. Accused admitted statement u/s. 164 CrPC of the prosecutrix as Ex.PW3/A, MLC of the prosecutrix as Ex.PA1, his MLC Ex.PA2, medical examination for assessment of age of prosecutrix as Ex.PA3, u/s. 294 CrPC.
5. On the basis of the incriminating evidence against the accused his statement u/s. 313 CrPC was recorded wherein he denied all the evidence against him. He stated that prosecutrix was in love with him and she at her own left her house and thereafter they both married and presently they are residing as husband and wife.
6. Heard arguments of Sh. Ashok Kumar, Ld. APP for State and Sh. A.K. Bali, Ld. Legal Aid counsel for accused. Perused the case file.
7. Ld. APP submitted that prosecutrix was minor at the time of this incident, hence kidnapping stands proved against the accused. It is stated that since prosecutrix was minor and she is residing with accused as his wife, the marriage got consummated. It is stated that statements of PW2 and PW4 are consistent and even prosecutrix has admitted that she left her FIR No. 96/09 State Vs. Sudhir Kumar @ Bholu page 2 of page 6 house and stayed with accused. It is stated that prosecution has been able to prove all the allegations against the accused.
8. Sh. A.K. Bali, Ld. Legal Aid counsel submitted that as per report of medical examination regarding assessment of age of the prosecutrix she was more than 17 years of age but less than 20 years of age. It is stated that as per prosecutrix she left her house at her own and thereafter married with accused and presently they both are residing as husband and wife. It is stated that prosecutrix was in the verge of majority when she left her house at her own will.
9. PW2 Sh. Jai Prakash is the complainant. He deposed that on 18.3.09 at about 12.30 p.m his wife alongwith his daughter on a rickshaw went to Govt. Girls Senior Sec. School, New Kondli as his daughter has to take her 11th class exam. At about 6/6.30 p.m when he returned from his job his wife searched his daughter, as she did not return back after taking exam. He also tried to search his daughter but she could not be traced. He made a call at 100 number. On 27.3.09 he lodged a complaint regarding missing of his daughter. The date of birth of her daughter is 25.5.93. Four persons of the locality were overpowered by the police and they disclosed that his daughter was kidnapped by accused Bholu @ Sudhir. Accused made call to him and his daughter talked with him telling that she is taken by accused in an Ambassador car. Within one month he alongwith the police reached Kannauj to search his daughter at the house of the accused. On 12.4.09 he alongwith police went to Sita Pur for the search of his daughter but his daughter could not be traced. On 29.4.10 his daughter was recovered from a house at Lucknow, she was alone in the house. Her daughter was produced in Court and from there she was sent to Nirmal Chhaya.
10. PW4 Smt. Manju Devi is the mother of the prosecutrix. She FIR No. 96/09 State Vs. Sudhir Kumar @ Bholu page 3 of page 6 supported statement of complainant PW2. In addition she deposed that after 23 days her husband received a call from her daughter telling that she is calling from Hardoi.
11. PW3 is the prosecutrix, she deposed that on 18.3.09 she left her house for taking exam but she did not take the exam. At 7 a.m she reached Anand Vihar Bus Stand, accused met her there as he was called by her. Thereafter they went to Neem Shehar, UP, stayed there and married in Mandir. There they resided as husband and wife by taking a rented house. Thereafter they did court marriage at Hardoi. Thereafter they resided at Sita Pur. There she got her bone age X'Ray done at Unnao, UP. In January'10 from Unnao, UP they went to Lucknow. In the end of April'10 her father reached there with Delhi police, accused was not present in the house and she was brought back to Delhi. Thereafter she remained in Nirmal Chhaya for about one year. During crossexamination she admitted that accused is her husband. She denied the suggestion that accused had kidnapped her and thereafter she married with him. She stated that accused did not establish any physical relations with her before marriage. On 18.3.09 she had gone with accused at her own freewill and accused had not put any force and pressure upon her for going with him. She left her house as her parents, her uncle and her brother used to beat her. She used to love accused but her family members did not use to like accused. At the time of her admission her father wrongly mentioned her date of birth as 25.3.93 since she was not getting admission because she was over age. She filed her bone age certificate done at Unnao as Ex.PW2/DA. During her cross examination she stated that she is 7th months pregnant from accused.
12. Ex.PW3/A is the statement of prosecutrix recorded by Sh. Rakesh KumarIII, Ld. M.M u/s. 164 CrPC. This statement is inconsistent with the statement of the prosecutrix recorded before this Court.
FIR No. 96/09 State Vs. Sudhir Kumar @ Bholu page 4 of page 6
13. From the statement of prosecutrix, it is clear that she left her house and went with accused at her own freewill and without any pressure from the accused. The age of the prosecutrix at the time of the incident is a material point to be seen. As per complainant PW2 and mother of prosecutrix PW4, date of birth of prosecutrix is 25.5.93. Except statement of PW2 and PW4, the only documentary evidence proved on record regarding age of the prosecutrix is her two ossification tests, one done at Delhi which is Ex.PA3 and other at Unnao, UP which is Ex.PW3/DA. As per Ex.PA3 bone age of prosecutrix at the time of examination i.e. 25.12.10 was found more than 17 years but less than 20 years. Ex.PW3/DA is the report of CMO, Unnao dated 30.7.09, as per which prosecutrix was aged 20 years.
14. The date of incident is 18.3.09. The report Ex.PW3/DA is dated 20.7.09 and report Ex.PA3 is dated 22.1.11. Though PW2 and PW4 stated that date of birth of prosecutrix was 25.5.93 but during her crossexamination prosecutrix has stated that her date of birth was wrongly mentioned at the time of her admission as she was over age at that time. In the absence of any document produced by PW2 and PW4 (parents of prosecutrix) regarding her age, the documents Ex.PA3 and Ex.PW3/DA has to be considered. From these documents, it cannot be safely concluded that prosecutrix was around 17 years of age on 18.3.09 i.e. date of incident.
15. Moreover, prosecutrix has specifically stated that immediately after leaving Delhi they married in Mandir in Neem Shehar, UP. She has admitted that at present she is residing with accused as his wife and is 7 th months pregnant from accused. During her crossexamination she has specifically stated that before marriage they did not establish any physical relations.
16. In 2006 (1) RCR (Criminal) 653, Hon'ble Delhi High Court has FIR No. 96/09 State Vs. Sudhir Kumar @ Bholu page 5 of page 6 observed that if a girl of 17 years accompanies a boy of her own volition, offence of kidnapping is not made out as the girl is on the verge of majority and has reached the age of discretion. In this case, prosecutrix being around 17 years of age had accompanied accused on her own volition without any kind of enticement or inducement or force from any one. It was observed by Hon'ble High Court that there was thus no taking away or inducement of minor out of keeping from lawful guardian, hence essential ingredients of offence of kidnapping are missing. Reliance is also placed upon S. Varadarajan Vs. State of Madras, AIR 1965 Supreme Court 942.
17. In view of the circumstances discussed above, since prosecutrix was aged about 17 years and being on the verge of majority, left her house willingly without any enticement on the part of the accused, prosecution has failed to prove that accused kidnapped prosecutrix with the intent to compel her to marry. Prosecution has also failed to prove any ingredients of offence defined u/s. 375 IPC against the accused. Accused is thereby acquitted from the offences punishable u/s. 363/366/376 IPC.
File be consigned to record room.
ANNOUNCED IN OPEN COURT ON 24.05.2012 (SANJAY GARG) ADDL. SESSIONS JUDGE(EAST) 01 KARKARDOOMA COURTS : DELHI FIR No. 96/09 State Vs. Sudhir Kumar @ Bholu page 6 of page 6 FIR No. 96/09 State Vs. Sudhir Kumar @ Bholu page 7 of page 6