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Delhi District Court

State vs Pankaj Kumar on 13 May, 2016

          IN THE COURT OF SH RAJ KUMAR TRIPATHI
            ADDL. SESSIONS JUDGE­02:SOUTH EAST
                 SAKET COURT: NEW DELHI 


IN RE:                                       ID No.02406R0149812014


SC No.40/14
FIR No.205/14
PS Lajpat Nagar
State                       Versus      Pankaj Kumar
                                        S/o Shri Arjun Choudhary
                                        R/o Village Balwa PS Dandakhera
                                        District Kathihar (Bihar) 
__________________________________________________________
Date of Institution              :      25.07.2014
Date of arguments                : 26.04.2016
Date of judgment                 :      13.05.2016


JUDGMENT

1. As per case of prosecution, on 04.04.14, complainant Joginder Paswan (PW­2) came to Police Station and lodged complaint Ex. PW­2/A regarding missing of his daughter aged about 15 years from his house. SI Satish Kumar (PW­12) prepared rukka and made endorsement Ex. PW­12/A and gave the same to duty officer HC Shailender Kumar (PW­5) for registration of FIR in the case, who recorded FIR No.205/14 under section 363 of The Indian Penal Code, 1860 (in short SC No.40/14 1 of 13 "IPC"). He uploaded information on ZIP Net Ex. PW­12/B and got issued WT message Ex. PW­12/C and Ex. PW­12/D and also informed to all other concerned authorities regarding missing persons.

2. On 07.04.14, complainant again came to the Police Station and suspected involvement of accused Pankaj Parihar in the incident. The police was sent to Bihar at the address of accused alongwith complainant. The girl was recovered. Her statement was got recorded before the Magistrate under section 164 of The Code of Criminal Procedure, 1973 (in short "Cr.P.C").

3. Matter was investigated as per law. IO of the case conducted various stages of investigation in the matter. The accused was found involved in the commission of offence in the case. Therefore, on conclusion of investigation, he was charge sheeted to face trial.

4. Accused, on his appearance before the court of learned MM, was supplied copy of charge sheet and complete set of documents and thus, compliance of section 207 Cr.P.C. was made.

5. As the offence under section 366 IPC is exclusively triable by the Court of Sessions, therefore, the matter was committed to the Court of Sessions for trial in accordance with SC No.40/14 2 of 13 law.

6. Prima facie, sufficient material was found to frame charge against accused for offence punishable under section 366 IPC. Therefore, charge for the said offence was framed against accused on 25.08.14, to which he pleaded not guilty and claimed trial.

7. In order to bring home the guilt against accused, prosecution has examined twelve witnesses. The details of which are given as under:­ i. ) PW­1 Ms. 'X' (assumed name) is daughter of complainant Joginder Paswan (PW­2), who is alleged to have been kidnapped by accused. She is victim in the case.

ii. ) PW­2 Joginder Paswan is the complainant, on the basis of whose complaint Ex. PW­2/A, FIR in the case was registered. iii. ) PW­3 Smt. Anita Devi is the mother of Ms. X and wife of complainant Joginder Paswan (PW­2).

iv. ) PW­4 W. SI Neetu Yadav joined the investigation in the case on 14.04.14. The victim was inquired by IO in her presence. She took the victim to AIIMS Hospital for her medical examination. The prosecutrix refused to undergo the gynecological test. v. ) PW­5 HC Shailender Kumar, the duty officer, is a formal witness of the prosecution.

SC No.40/14 3 of 13 vi. ) PW­6 HC Shyam Lal Sharma went alongwith complainant Joginder Paswan to Bihar in search of the victim. The victim/girl was recovered from the house of accused. The victim was brought to Delhi and her custody was given to her father. vii.) PW­7 Dr. Ekta examined the X­ray films of Ms. X. She proved her report which is Ex. PW­7/A. As per her report, the age of Ms. X was found to be less than 14.9 years on the date of her examination.

viii.) PW­8 Dr. Richa Vats examined patient Ms. X in the hospital. She proved MLC of the victim/girl which is Ex. PW­8/A. She also prepared Casualty Slip and proved the same as Ex. PW­8/B. ix. ) PW­9 Shri Gagandeep Jindal is the learned Magistrate, who recorded statement of victim under section 164 Cr.P.C. x. ) PW­10 SI Suresh Kumar was the IO of the case who investigated the matter from 14.04.14 to 16.04.14. He recorded statement of victim under section 161 Cr.P.C. and got her medically examined at AIIMS Hospital. He arrested the accused vide arrest memo Ex. PW­10/A and conducted personal search of accused vide memo Ex. PW­10/B. He also recorded disclosure statement of accused which is Ex. PW­10/C. He moved application Ex. PW­10/D for recording statement of victim before the Magistrate.

SC No.40/14 4 of 13 xi. ) PW­11 Ct. Krishan Kumar joined the investigation in the case on 14.04.14. In the presence of the witness, accused was apprehended.

xii.) PW­12 SI Satish Kumar is the main IO of the case, who concluded investigation in the matter and after conclusion of investigation, filed challan in the court.

8. On conclusion of prosecution evidence, statement of accused under section 313 Cr.P.C. was recorded, wherein all incriminating material/circumstances was put to him, to which he claimed innocence and alleged false implication. Accused stated that he had not kidnapped the victim i.e. Ms. X. She had herself forced him to take her some where. He further stated that she had threatened to jump in a well in jungle in case, he did not take her. As per accused, parents of Ms. X knew their relationship

9. Accused preferred not to lead any evidence in his defence.

10. I have heard and considered the submissions advanced by Shri M. Zafar Khan, learned Additional Public Prosecutor for State and Shri Manoranjan Gaur, learned legal aid counsel for accused and carefully perused the record of the case.

11. PW­1 Ms. X is the star witness of the prosecution. She deposed that she knew accused for about 2­3 months prior to the SC No.40/14 5 of 13 incident. She stated that accused used to live in their area. She deposed that in the morning, she came out of her house, she found accused standing at a distance and she alongwith him first took metro and reached Railway Station and from there, they took a train and after about 2 days, she and accused reached in Bihar. She deposed that she had accompanied accused to Bihar out of her free will and accused had not induced her or pressurized her in any manner. She stayed in the village of accused in his house for three days. On fourth day, her father Joginder Paswan came alongwith police officials and she and accused were brought to Delhi. She was medically examined in government hospital and police released her in the custody of her parents. She proved her statement Ex. PW­1/A which was recorded by learned MM under section 164 Cr.P.C.

12. Ms. X further deposed that during her stay with accused in his house at his village, accused did not do any sexual act with her nor he molested her in any manner. She stated that she slept separately in his house. As per the witness, she did not marry the accused. In her cross examination, she stated that she did not inform any police officer or any railway official regarding her going with accused as she was going with him out of her free will. She admitted that she was told by the police officer to state SC No.40/14 6 of 13 her age as fifteen years before learned Magistrate.

13. PW­2 Joginder Paswan is complainant and father of Ms. X. He deposed that when her daughter went missing from their house, he lodged complaint Ex. PW­2/A in Police Station Lajpat Nagar. He further deposed that accused Pankaj was residing in their neighbourhood and when he searched him, he was not found present in his room so, he told his name to the police. He stated that he alongwith police went to village of accused i.e. Balwa in District Katihar, where his daughter was found in his house. Police brought accused and his daughter to Delhi. He deposed that his daughter informed him that she was induced by accused to come to Bihar with him. She further informed him that she and accused had married each other. He stated that his daughter had not gone to any school in Delhi but she had attended school in their village Mohammad Pur.

14. PW­3 Smt. Anita Devi is mother of Ms. X. She deposed that when her daughter went missing from their house, her husband lodged complaint in Police Station Lajpat Nagar. She stated that police brought accused and her daughter to Delhi from Bihar. She deposed that her daughter informed her that she had gone to Bihar of her free will with accused and accused did not pressurize her to go with him. She further deposed that her SC No.40/14 7 of 13 daughter had become friendly with accused as he was residing in their area. The witness denied the suggestion given by learned Additional Public Prosecutor for State that her daughter informed her that she was induced by accused Pankaj to go with him to Bihar or that accused had forced her to marry her daughter.

15. There is no documentary proof regarding the age of Ms. X. PW­2 Joginder Paswan and PW­3 Anita Devi, both have admitted that they did not hand over any documentary proof of their daughter's age or her schooling. PW­7 Dr. Ekta, who examined X­ray films of Ms. X, opined that age of Ms. X was less than 14.9 years on the date of her examination as epiphyses of metacarpals and proximal phalanges have not yet fused.

16. When Ms. X was recovered from the house of accused and brought to Delhi, her statement was recorded under 164 Cr.P.C. by learned Metropolitan Magistrate. In her statement Ex. PW­1/A, Ms. X did not attribute any fault of accused. She stated that on 04.04.14, she went with a boy named Pankaj out of her own free will to Katihar (Bihar), where she stayed with his parents.

17. The testimony of Ms. X shows that she has completely exonerated the accused and has not attributed or assigned any overt act of enticing or taking her out of the lawful guardianship SC No.40/14 8 of 13 of her parents. Accused in his statement recorded under section 313 Cr.P.C. has also stated that Ms. X had herself forced him to take her somewhere. She threatened to jump in a well in jungle in case, he did not take her.

18. After going through the testimony of prosecution witnesses including of Ms. X, this court finds that the present case is not a case, where there was any persuasion on the part of accused which can amount to a 'taking' or 'enticing' the victim which is sine qua non for the offence of kidnapping as defined under section 361 IPC. PW­1 Ms. X has categorically stated that she had accompanied the accused to Bihar of her free will and accused did not induce or pressurize her in any manner. In these circumstances, it cannot be said that the accused was guilty of taking Ms. X out of the keeping of her lawful guardianship. There was no active persuasion on the part of accused. It was Ms. X, who herself accompanied the accused and asked him to take her to somewhere.

19. Hon'ble Apex Court in the case of S. Varadrajan Vs. State, AIR 1965 SC 942 held that :

"The offence of "kidnapping from lawful guardianship" is defined thus in the first paragraph of s.361 of the Indian Penal Code:

SC No.40/14 9 of 13 "Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age of a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship."

8. It will thus be seen that taking or enticing away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping....

.........xxxxxx..........xxxxxxxx..............

11. It must, however, be borne in mind that there is a distinction between "taking : and allowing a minor to accompany a person. The two expression are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purpose of s. 361 of the Indian Penal Code. We would limit ourselves to a case like SC No.40/14 10 of 13 the present where the minor alleged to have been taken by the accused persons left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not thing that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian.

12. It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. In our opinion if evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of SC No.40/14 11 of 13 taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardian's house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfillment of the intention of the girl. That part, in our opinion, falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to "taking"."

20. In the present case, there is nothing on record to suggest that accused enticed Ms. X to accompany him. Ms. X, out of her own free will, accompanied the accused to his native place in Bihar. She stayed with his parents in his house. Ms. X has herself stated that accused had neither induced her nor pressurized her in any manner. She has also stated that during her stay with accused in his house at his village, he did not do any sexual act with her nor he molested her in any manner. She stated that she slept SC No.40/14 12 of 13 separately in his house and she did not marry with him. Since the victim Ms. X had herself accompanied the accused to his house, the ingredients of taking or enticing which are necessary to constitute the offence under section 363 and 366 IPC are not made out. If the version of accused is to be believed, it was Ms. X who forced him to take her somewhere. There is no material on record to suggest that accused persuaded Ms. X or enticed her to accompany him and took her out of her lawful guardianship.

21. For the reasons discussed above, in my considered view, prosecution has failed to bring home the offence under section 366 IPC against accused beyond all shadow of reasonable doubt. Benefit of doubt is given to accused. Accused is hereby acquitted for offence punishable under section 366 IPC.

22. Accused is directed to furnish personal bond and surety bond in the sum of Rs.25,000/­ in terms of section 437A Cr.P.C. On furnishing of bail bond by the accused, he be released from custody, if not wanted in any other case.

23. File be consigned to record room.

Announced in the open              (RAJ KUMAR TRIPATHI) 
court today i.e. 13.05.2016              Addl. Sessions Judge­02
                                South­East, Saket Courts, New Delhi




SC No.40/14                                                                   13 of 13