Delhi District Court
State vs . Dheeraj on 2 January, 2014
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE(NDPS)
DWARKA COURTS, NEW DELHI
SC No.10/01/13
FIR No.145/12
U/s 363/366 IPC
PS Inder Puri
State
Vs.
Dheeraj s/o Sh Grand Singh
.......... Accused
Challan filed on : 16.01.2013
Reserved for order on : 19.12.2013
Judgment delivered on :02.01.2014
JUDGMENT
Briefly stated the facts of the prosecution case are that on 22.10.2012 Salika Ali @ Alisha d/o Zulfikar Ali @ Chanu went to market at about 3 p.m but she did not return back. On 26.10.2012, Zulfikar Ali, father of Salika lodged complaint in PS Inderpuri regarding missing of his daughter. He searched for his daughter and on 13.11.2012 he got recorded his statement Ex.PW3/A wherein he has alleged that he has 10 kids. On 22.10.12 his daughter Salika went State Vs. Dheeraj FIR no. 145/12 Page No.1 of 18 out at about 3 p.m stating that she is going to market but she did not return. He searched for her but could not trace her. He lodged missing report of his daughter in the PS on 26.10.12 At the time of loading the missing report he got recorded her age as 18 years 6 months but on checking the school certificate it was found to be 7.12.1997. He came to know that his neighbourer Dheeraj had taken his daughter away after enticing and alluring her and he is residing in Fatehabad Haryana. He went to Fatehabad and lodged complaint in PS and police of Fatehabad had apprehended Dheeraj and his daughter while living together. Police of PS Inderpuri reached there and brought back them to Delhi. They were medically examined. The accused was arrested and 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 02.02.2013.
3. The charge against the accused Dheeraj was framed u/s 363/366 IPC on 02.04.2013 to which the accused pleaded not guilty and claimed trial. Hence the case was fixed for Prosecution State Vs. Dheeraj FIR no. 145/12 Page No.2 of 18 Evidence.
4. The prosecution, in order to prove its case against accused Dheeraj, in all has examined as many as 9 witnesses.
5. PW1 Dr.Shahid Murtaza has conducted the medical examination of prosecutrix and prepared her MLC Ex.PW1/A. She also examined accused Dheeraj and prepared his MLC Ex.PW1/B.
6. PW2 Ms. Manika, Ld.MM has deposed that she recorded the statement of prosecutrix u/s 164 Cr.PC on 14.11.2012. The said statement is Ex.PW2/A.
7. PW3 SI Shanti Prakash has deposed that on 26.10.12 Zulfikar came to PS and reported regarding missing of his daughter. He recorded DD no.32A copy of which is Ex.PW3/A. On 13.11.2012 he recorded FIR no.145/12 on the basis of rukka presented by Si Sudesh. The copy of FIR is Ex.PW3/B.
8. PW4 Kumari Salika is the prosecutrix who has stated that she was in love with accused and he never insisted her to go with State Vs. Dheeraj FIR no. 145/12 Page No.3 of 18 him. She is aged about 20 years. Her father has given wrong date of birth to the police. Her statement is Ex.PW2/A. Her statement was not recorded by the police at any point of time vol. She had gone with the accused on her own because her father had fixed her engagement with some other person. She was declared hostile by the prosecution and cross examined by the Ld.APP for the State but she denied and every suggestion put by the Ld. APP.
9. PW5 Zulfikar Ali @ Chanu is the complainant and father of prosecutrix. He has stated that he lodged complaint on 22.10.2012 regarding missing of his daughter. The said complaint is Ex.PW3/A which is recorded in DD no.32A. He has further stated that he came to know that his daughter Salika is residing with accused Dheeraj at Fatehabad. He went there and made statement before police which is Ex.PW4/A. He handed over a card of Kasturba Gandhi Awasiya Balika Vidyalaya Chhajlet Muradabad Ex.PW5/B to the police. He does not know what was the date of birth of his daughter Salika in the school. He was also declared hostile and cross examined by the Ld. APP wherein he has denied the suggestion that he is deliberately concealing the date of birth of his daughter Salika. He denied the suggestion that he has stated to the police that date of State Vs. Dheeraj FIR no. 145/12 Page No.4 of 18 birth of his daughter was 7.12.1997.
10. PW6 Madhu has produced the admission record of prosecutrix. The copy of admission form is Ex.PW6/A and copy of affidavit is Ex.PW6/B. As per card, her date of birth is 7.12.1997.
11. PW7 WHC Seema has stated that she brought the prosecutrix to Dwarka Court and got recorded her statement u/s 164 Cr.PC.
12. PW8 SI Balwant is the witness from PS City Fatehbad and he has deposed that on 12.12.2012 Zulfikar came to PS and stated about missing of his daughter and that she is present in village Daulatpur. He went there and brought prosecutrix and accused to PS and informed PS Inderpuri from where SI Sudesh Pal came and made DD Ex.PW8/A in thet PS.
13. PW9 SI Sudesh is the IO of this case and he has deposed that about lodging of report by complainant and that she was brought to PS from PS Fatehgarh. He recorded the statement of Zulfikar and got registered the case. The accused was arrested vide State Vs. Dheeraj FIR no. 145/12 Page No.5 of 18 memo Ex.PW9/B and his personal search was conducted vide memo ex.PW9/C. His disclosure statement is Ex.PW9/D. He prepared the challan and filed in the court.
14. 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. The prosecutrix accompanied with him on her own free will. He did not opt to lead defence evidence. Therefore the case was fixed for final arguments.
15. 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 not supported the case of the prosecution and she has clearly stated that she accompanied the accused with her own free will. It is further submitted that accused and prosecutrix have got married. It is submitted that accused may kindly be acquitted.
16. 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 State Vs. Dheeraj FIR no. 145/12 Page No.6 of 18 was taken away by the accused, her age was not 18 years. So, accused may kindly be convicted.
17. On analyzing the testimonies of witnesses, it is revealed that PW4 Salika is the prosecutrix and PW5 Zulfikar is her father 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 IPC. I have gone through the evidence as well as documents on record. In this case prosecutrix PW4 Salika has clearly stated that she was in love with accused and that he never insisted her to go with him. She denied the suggestion of Ld. APP for the State that accused has induced her to go with him and on 22.10.2012 she had left her house on the inducement of accused Dheeraj. I have also considered her statement recorded u/s 164 Cr.PC by PW2 Ms. Manika, Ld. MM wherein she has stated that she had gone with accused on her own free will. They got married in the temple. She wants to live with him. Her father has fixed her engaged somewhere else where she does not want to marry and hence she accompanied Dheeraj. Considering the statement of the prosecutrix, it is manifest that she herself had accompanied the accused in this case on her own free will and that she wants to live State Vs. Dheeraj FIR no. 145/12 Page No.7 of 18 with him only.
18. PW5 Zulfikar, has stated that his daughter had gone on 22.10.2012 to market and did not return back. He made report to the police. One day he came to know that she is residing with Dheeraj at Fatehgarh. He went there and local police recovered his daughter with accused. He handed over the card of date of birth of his daughter to police. As per the case of the prosecution the prosecutrix had eloped on 22.10.12. He did not state before the court that his daughter was taken away by accused after enticing her forcibly for getting married with him. In this case none of the witnesses PW4 & PW5 have stated that the prosecutrix was taken away by accused after enticing or alluring her. In consideration of the statements of PW4 Salika and PW5 Zulfikar Ali (her father), no substantive evidence has come against the accused that he had taken away the prosecutrix forcibly against her will with intent to marry her.
19. 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 of complainant recorded in DD no.32A, he has stated that his daughter Jyoti was aged about 18 years State Vs. Dheeraj FIR no. 145/12 Page No.8 of 18 6 months. Thereafter, in another statement Ex.PW5/A he has stated her dated of birth as 7.12.97. The prosecutrix has stated her age to be 19 years (15.01.1993) in her statement recored u/s 164 Cr.PC before the Ld. MM. PW5 Zulfikar has stated before the court that he made a report to the police stating the age of his daughter Salika as 18 years and 6 months. He handed over a card of Kasturba Gandhi Awasiya Balika Vidyalya Ex.PW5/B to the police. He does not know what was the date of bith mentioned in the said card Vol. He did not tell the date of birth of his daughter Salika in the school. In cross examination conducted by Ld. APP for the State he denied the suggestion that he has stated to the police that the date of birth of his daughter was 7.12.97 and in cross examination conducted by the Ld. Counsel for the accused he has stated that at the time of incident his daughter was 18 years 6 months old. The prosecution has examined PW6 Smt. Madhu, Incharge of Kasturba Gandhi Awasiya Balika Vidhyalya who has stated that as per record, the date of birth of Kumari Salika is 7.12.1997 which was entered in the school record on the basis of affidavit given by father of Kumari Salika. The admission form is Ex.PW6/A and copy of affidavit is Ex.PW6/B. As per affidavit, the deponent had no proof of the date of birth of Kumari Salik. Admittedly, the age of the prosecutrix, in school State Vs. Dheeraj FIR no. 145/12 Page No.9 of 18 record was mentioned as per affidavit Ex.PW6/B. It is therefore admitted that the date of the prosecutrix has not been mentioned as per the Muncipal Corporation record. The prosecution has not got conducted the ossification test of the prosecutrix in this case. The prosecutrix has stated that she accompanied the accused with her own free will. There is no authentic age proof of the prosecutrix in this case. Even as per deposition of witnesses, there is different age deposed by father of prosecutrix and prosecutirx. 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.' State Vs. Dheeraj FIR no. 145/12 Page No.10 of 18
20. 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 minor leaves the custody of lawful guardian under enticement. Presuming the deposition of prosecution and her father regarding her age her age 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'.
21. 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 State Vs. Dheeraj FIR no. 145/12 Page No.11 of 18 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 the charge under Section 366 of IPC.'
22. 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.
23. 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 State Vs. Dheeraj FIR no. 145/12 Page No.12 of 18 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 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.
24. 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.
State Vs. Dheeraj FIR no. 145/12 Page No.13 of 18
25. 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 circumstances clearly show that offence under Section 363 or 366 of I.P.C. was not made out.
26. 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 : State Vs. Dheeraj FIR no. 145/12 Page No.14 of 18 '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 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.
27. 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 guaradian 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 State Vs. Dheeraj FIR no. 145/12 Page No.15 of 18 her away from the protection of her lawful guardian within the meaning of sec.361 of the Code'.
28. The present case stands on a much stronger footing because the prosecutrix PW4 Salika has clearly stated before the court that she accompanied the accused on her own freewill. I have considered the statement of prosecutrix recorded u/s 164 Cr.PC wherein she has clearly stated that she wants to live with Dheeraj. She eloped with him as her father has fixed her engagement somewhere else where she does not want to marry.
29. 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'. State Vs. Dheeraj FIR no. 145/12 Page No.16 of 18
30. In the present case, the prosecutrix PW4 Salika 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 Dheeraj. 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 recorded by the Ld. MM. It is also clear that she was in love with accused Dheeraj 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 temple. The father of the prosecutrix has not stated that Salika was taken away by accused Dheeraj 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.
31. In view of the evidence on record and specifically when the prosecutrix and accused have married, 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. I therefore give the benefit of doubt to State Vs. Dheeraj FIR no. 145/12 Page No.17 of 18 accused Dheeraj and he is acquitted for the commission of offence punishable u/s 363/366 IPC.
32. Accused is on bail in this case. He is directed to furnish 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 02.01.2014 (SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE/ SPECIAL JUDGE(NDPS) NEW DELHI State Vs. Dheeraj FIR no. 145/12 Page No.18 of 18