Delhi District Court
State vs Arvind Maurya on 19 October, 2022
FIR No. 340/14 P.S. Kapashera U/s. 363/366 IPC IN THE COURT OF VIPLAV DABASS: ADDL. SESSIONS JUDGE : FAST TRACK COURT: SOUTH-WEST DISTRICT DWARKA COURTS: NEW DELHI SC No. 338/2017 State vs Arvind Maurya S/o Sh. Mahadev R/o H.No. 319, Gali No. 2, Shalapur Khera, New Delhi. CNR No. DLSW010066782017 FIR No. 340/2014 Police Station Kapashera Under Sections 363/366 IPC Date of Institution 01.05.2017 Date of Committal to Sessions Court 08.05.2017 Date of Transfer to this Court 27.08.2022 Date on which judgment was 19.10.2022 reserved Date on which Judgment was 19.10.2022 pronounced Final Order Acquitted State V/s Arvind Page 1 of 14 FIR No. 340/14 P.S. Kapashera U/s. 363/366 IPC JUDGMENT
BRIEF FACTS OF THE CASE:
1. The case of prosecution is that on 29.07.2014 at about 2.30-3.00 pm at H. No. 263, Gali No. 3, Salahpur Khera, New Delhi accused Arvind Maurya, took away minor girl aged about 16 years out of the keeping of her lawful guardian/parents without their consent and took her to Phula Gaon, District Rai Barelli, U.P. On 31.07.2014 at about 12.15 pm, complainant Smt. Mithila gave a missing complaint of her daughter. On her complaint, the present FIR was registered and the case was marked to SI Paramjeet Singh for investigation. On 08.08.2014, HC Satyaveer had telephonically informed SI Paramjeet that the missing/kidnapped child 'S' was at Shalapur Khera along with accused Arvind. SI Pramjeet went to Shalapur Khera where he met HC Satyabeer. SI Paramjeet took the victim, complainant and accused to Police Station. On interrogation, victim stated that accused Arvind had enticed her to marry her and also married her. She had also shown Marriage Contract dated 04.08.2014 executed between the victim and accused. Thereafter, accused was arrested and was produced before the court after medical examination. From there he was sent to JC. Victim and with her mother was sent for medical examination. However, mother of victim refused for gynae examination of the victim.
2. On 01.05.2017, charge sheet was filed before the court after conducting investigation and Ld. Magistrate took cognizance of offences alleged. On State V/s Arvind Page 2 of 14 FIR No. 340/14 P.S. Kapashera U/s. 363/366 IPC 08.05.2017, after compliance of section 207 Cr.P.C, the present case was committed to court of Sessions.
3. After hearing arguments on point of charge, on 17.07.2018, as a prime facie case was made out, charge for the offence punishable u/s u/s 363/366 IPC was framed against the accused Arvind Maurya to which he pleaded not guilty and claimed trial. Thereafter, the matter was listed for prosecution evidence.
4. During the course of the trial, prosecution examined 5 witnesses to substantiate the accusations levelled against the accused.
5. PW-1 'S'/victim deposed that she was residing with accused as his wife. She had a son of aged about 2 years from their wedlock and the accused has no role in abducting her in this case. She had gone with the accused with her own free will and due to some misconceptions, her mother got registered this case against accused nor her statement was recorded by police at any point of time.
The witness was cross examined by the Ld. Substitute Addl. PP for State as she was resiling from her earlier statement. In his cross examination she admitted her signatures on her statement Ex. PW-1/A however, she denied making the statement. She admitted that she had given her statement before the Ld. MM. However, the same was given under the influence of her parents. She denied that on 29.07.2014, accused abducted her on the pretext State V/s Arvind Page 3 of 14 FIR No. 340/14 P.S. Kapashera U/s. 363/366 IPC of marrying her. She further denied that on 04.08.2014 accused forcibly put sindoor in her maang. She further denied the contract of marriage Ex. PW- 1/A before the Notary Public in Rai Barelliey. She further denied that she was deposing falsely as she had married the accused.
The witness PW-1/was not cross-examined by the defence counsel despite opportunity.
6. PW-2 Smt. Mithila deposed that on 31.07.2014, she lodged a missing report of her daughter vide DD no. -21 A Ex. PW-2/A at PS Kapashera because she did not return home. However, she did not name any person in the same. She further deposed that her daughter is residing with the accused Arvind Maurya happily and also having a male child aged about 5 years. Upon permission of the court, the witness was cross examined by the Ld. Substitute Addl. PP for State as she was resiling from her earlier statement.
During her cross-examination by Ld. Additional Public Prosecutor she admitted that when her daughter was missing she was aged about 16 years and 4 months. However, she denied that the accused had kidnapped or enticed her daughter to go with him. She further denied that she was deposing falsely as her daughter got married with the accused. The witness was not cross examined by the defence despite opportunity.
7. PW-3 SI(Retired) Rajender deposed that on 16.06.20116, he was posted at PS Kapashera as Sub Inspector. On that day, the case file of the present case was assigned to him. During investigation, he went to the house State V/s Arvind Page 4 of 14 FIR No. 340/14 P.S. Kapashera U/s. 363/366 IPC of accused Arvind Maurya and he met with the grand mother of the accused who stated to him that accused had stayed there only for one day with a girl and thereafter, the accused had left. After completion of the investigation, he prepared the charge sheet. The witness was not cross examined by the defence despite opportunity.
8. PW-4 Sh. Ashok Kumar, Retired Registrar of Birth deposed that in the year 2005, he was posted as a Registrar of Birth at Orai, District Mujjaffarpur, Bihar and the birth certificate no. 836442 Ex. PW-4/A pertaining to victim was issued by him and as per record the date of birth of victim was 19.03.1998. During his cross examination by the defence he deposed that he had verified the documents produced by the parents of the victim regarding her date of birth and the said document was an application and affidavit.
9. PW-5 Inspector Param Jeet Singh was the IO of the present case and he deposed that on 31.07.2014 he was posted at PS Kapashera. On that day, investigation of the case was assigned to him. During investigation, he completed formalities regarding missing persons. On 08.08.2014 information was received from beat HC Satyaveer that the missing girl and the accused who had enticed away her were coming to Shalapur Khera and he also reached Shalapur Khera where he met the accused who had come with the missing girl. The accused was apprehended and he along with the missing girl and her mother were brought to Police Station. Accused was arrested vide State V/s Arvind Page 5 of 14 FIR No. 340/14 P.S. Kapashera U/s. 363/366 IPC arrest memo Ex. PW-5/A and his personal search was conducted vide search memo Ex. PW-5/B. He seized the contract of marriage Ex. PW-5/C. During investigation, he also got recorded the statement of prosecutrix u/s 164 Cr.P.C and collected the copy of the same. He also recorded the statement of witnesses u/s 161 Cr.P.C and on his transfer, he handed over the file to MHCR. The witness was not cross examined by the defence despite opportunity.
10. Accused admitted the factum of preparation and genuineness of MLC No. C/158844, Marked as Ex. A-1, statement u/s 164 Cr.P.C Marked as Ex. A-2, FIR Marked as Ex. A-3, certificate u/s 65-B Indian Evidence Act issued by the Duty Officer Marked as Ex. A-4 and DD no. 21-A already Ex. PW- 2/A in his statement recorded u/s 294 Cr.PC. In view of his statement, PW DO/W/HC Usha Rani and PW- Sh. Arun Goyal, Ld. Link MM, Dwarka Courts, were dropped from the list of witnesses. On 07.10.2022 prosecution evidence was closed on submissions of Ld. Additional Public Prosecutor as all the material witnesses have been examined. Thereafter, the matter was fixed for recording statement of accused under Section 313 Cr.P.C. for 15.10.2022.
11. On 15.10.2022, the statement of accused Arvind Maurya under Section 313 Cr.P.C. was recorded and incriminating circumstances appearing in evidence were put to him who stated the same to be incorrect. Accused submitted that he has been falsely implicated in this case and he has not State V/s Arvind Page 6 of 14 FIR No. 340/14 P.S. Kapashera U/s. 363/366 IPC committed any offence. The accused did not opt to lead defence evidence and hence, defence evidence was closed. Thereafter, the matter was proceeded further for final arguments.
12. This court heard the arguments advanced by the Ld. (substitute) Additional PP for the State and Ld. Counsel for the accused persons and perused the record of the case.
13. Ld. Substitute Additional Public Prosecutor argued that the prosecution has clearly established, its version of abduction/kidnapping of victim by taking/enticing away minor 'S' out of the keeping of her lawful guardian i.e. parents without their consent and taking her to Phula Gaon, District Rai Barelli, UP with intent to force her or seduce her to marry her, beyond all reasonable doubt. He stated that the fact that the victim was found with the accused Arvind Maurya at Shalanpur Khera and that victim's statement u/s 164 Cr.P.C was also duly recorded which has been admitted by the victim, establish the culpability of the accused. He further stated that the factum that the accused was minor is proved by PW-4 Sh. Ashok Kumar. He further argued that in view of the firm testimony of IO and Registrar of Birth, the hostility of the complainant and the victim is of no consequence to exonerate the accused because the victim had married the accused and is also having a baby. In view of aforesaid submissions, he stated that accused be convicted for the offences punishable U/s 363/366 IPC.
State V/s Arvind Page 7 of 14FIR No. 340/14 P.S. Kapashera U/s. 363/366 IPC
14. Ld. counsel for the accused argued that the victim 'S' and complainant/PW-2/Smt. Mithilia who are the Star witnesses of the prosecution have not supported the version of prosecution qua taking away or enticing of the victim from the custody of her guardians without her consent. He argued that the testimony of the police witnesses is of no consequence in view of hostility of the said main witnesses. He further stated that admission of statement u/s 164 Cr.P.C is of no use to the prosecution in view of the hostility of the complainant and victim at the time of trial. He further stated that in view of the aforesaid submission, accused should be acquitted as he has been falsely implicated.
15. In order to prove the offense U/s 363/366 IPC against accused, the prosecution was required to prove beyond reasonable doubt that the accused kidnapped/took or enticed away minor/victim 'S' out of keeping of her lawful guardian i.e. parents without their consent and took her to Phula Gaon, District Rai Barelli, U.P with intent to force her or seduce her to marry or to have illicit intercourse with accused. For proving the aforesaid ingredients, the prosecution examined five witnesses out of which PW-1 , PW-2 and PW-4 are the most important witnesses being the victim herself , complainant / mother of victim/minor and Registrar of Birth respectively and the remaining witnesses are the police officials. Henceforth, court shall now proceed further to evaluate the evidence available on record to find out if the prosecution has succeeded in its task or not.
State V/s Arvind Page 8 of 14FIR No. 340/14 P.S. Kapashera U/s. 363/366 IPC
16. In the present case, accused is alleged to have kidnapped victim S, minor aged about 16 years and taken her to Phula Gaon, District Rai Barelli, U.P. with intent to force her or seduce her to marry or to have illicit intercourse with him. In order to prove that the victim was a "Child" less than 18 years of age, as on the date she went missing from her house, prosecution has examined Sh. Ashok Kumar, (Retired Registrar of Birth) as PW-4. As per record produced by PW4, the date of birth of child S, was 19.03.1998. The date of missing of the victim child is 29.07.2014 and as such, the victim S was aged 16 years Four Months Ten Days, when she eloped with the accused. Even otherwise, PW-2 the mother of the victim admitted in her cross- examination conducted by Ld. Additional PP for the State that when her daughter had gone missing she was aged about 16 years and four months. Hence, the victim is a 'child' for the purposes of Section 363/366 IPC.
17. PW-1/ 'S' was the victim/minor and eye-witness of the alleged incident and was examined as PW-1. Prosecution was relying on his version but she did not support the case of prosecution and turned hostile qua the allegations made by him in her statement recorded under Sections 161 and 164 Cr.P.C. PW-1 deposed in her examination in chief that accused Arvind Maurya is her husband and she is having a 2 year old baby boy out of the said wedlock. She further deposed that accused has no role in abducting her and she went with the accused out of her own free will and due to some misconception her mother got registered this case against accused and she had not given any statement to the police. She was cross-examined by the Ld. Addl. P.P for the State V/s Arvind Page 9 of 14 FIR No. 340/14 P.S. Kapashera U/s. 363/366 IPC State but she denied all the leading questions put by the prosecution.
She admitted in the cross-examination conducted by Ld. Addl. PP for State that statement Mark PW-1/A bears her signatures and her photograph and also the fact that her statement was recorded before the Ld. MM. However, she further stated that she had given the statement under the influence of her parents. She further denied the suggestions put to her by the Ld. Addl. PP for the State to negate the aforesaid hostile testimony to the effect that on 29.07.2014, accused abducted her on the pretext of marrying her and that on 04.08.2014 accused forcibly put sindoor in her maang. She further denied the contract of marriage Ex. PW-1/A executed before the Notary Public in Rai Barelliey. The firm deposition of PW-1 along with consistent denials of the questions of the State indicates that prosecution failed to extract any material in its favour despite detailed cross examination. It is thus clear that PW-1 has completely turned hostile with respect to the offences alleged.
18. PW-2 / Complainant Smt. Mithila deposed that she had lodged a missing report of her daughter 'S' vide DD no. 21-A Ex. PW-2/A but she had not named any person. She denied the allegations levelled against the accused in the detailed cross examination conducted by Ld. Additional PP for State. These testimonies further shatter the prosecution version of involvement of accused Arvind Maurya in the alleged offences which substantiates the defence version of false implication of the accused.
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19. The argument of Ld. Substitute Addl. PP that since the prosecutrix was less than 18 years of age as on the date of commission of offence and factum of her marriage with accused is established, so the accused is liable to be convicted u/s 363/366 IPC, is being dealt in following paragraphs.
20. Record shows that the victim S who was examined as PW-1 has stated that she had gone with the accused with her own free will and solemnized marriage with him and that accused had no role in abducting her in this case. Testimony of PW-2/mother of the victim shows that she had not named the accused in the missing report Ex. PW-2/A. It is thus clear that prosecutrix who was more than sixteen years old, when had voluntarily eloped with the accused.
21. Thus, so far as the factum of forcible marriage or taking away of the prosecutrix for the purpose of said marriage is concerned, there is not even an iota of evidence on record.
22. In the present facts, it is apt to refer to para 8 of judgment titled as Bunty vs. State (G.N.C.T.) of Delhi in Crl. Appeal no. 846/2009 decided on 16.03.2011 by the Hon'ble Delhi High Court wherein it is held that :
"8. In this case, the prosecutrix had accompanied the Appellant voluntarily without any use of force exercised by him. It is not a case wherein he had taken the prosecutrix after enticing her. Prosecutrix had travelled with the accused to different places outside Delhi without raising any alarm or complaining to State V/s Arvind Page 11 of 14 FIR No. 340/14 P.S. Kapashera U/s. 363/366 IPC fellow passengers that she had been taken away by force. If a minor accompanies accused voluntarily without any offer or allurement then offence under Section 363 is not made out. ...."
23. Here, it is further relevant to refer to the case titled as " S. Varadarajan Vs. State of Madras (reported as AIR 1965 SC 942)", wherein while distinguishing between " taking" and "allowing a minor to accompany a person" it has been laid down by the Hon'ble Supreme Court of India that : " There is a distinction between " taking" and allowing a minor to accompany a person. The two expressions are not synonymous though it can not be laid down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of S. 361. Where the minor leaves her father's protection knowing and having capacity to know the full import of what she is doing , voluntarily joins the accused person, the accused cannot be said to have taken her away from the keeping of her lawful guardian."
24. In the instant case also, the element of 'taking away' or 'enticement' is found to be lacking as prosecution has failed to establish any overt or covert act committed by the accused or any offer or allurement given by the accused in taking away the minor/victim S from the keeping of her lawful guardians or causing her to move out of control of her parents. In these circumstances, the factum of kidnapping of prosecutrix does not stand proved.
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25. With respect to the arguments advanced by Ld. Addl. PP for State that duly proved victim's statement u/s 164 Cr.P.C regarding the incident is sufficient to incriminate the accused, it is pertinent to mention that statement u/s 164 Cr.P.C is not substantive piece of evidence. The same can merely used to corroborate the version stated during the trial before the court. In the present case, the victim has firmly denied the fact that she was forcibly taken away from the lawful custody of her parents or seduced/enticed to get married. Furthermore, PW-2/mother of victim/complainant stated that she has not named the person who had abducted her daughter. Considering the same and the justification given by the victim that the said statement under section 164 Cr.P.C was made under the influence of her parents, the presumption of culpability of the accused Arvind Maurya arising on the basis of statement u/s 164 Cr.P.C of the victim, stands washed off.
26. The crux of foregoing discussion is that from the testimony of the minor victim 'S' as well as other material witnesses examined by the prosecution, it can be safely held that prosecution miserably failed to prove that accused Arvind Maurya had kidnapped minor victim'S' aged about 16 years, with intention to compel her to marry him and to force / seduce her to have illicit intercourse with her.
27. Considering the afore-discussed testimonies, this Court is of the view that arguments advanced by the Ld. Substitute Additional Public State V/s Arvind Page 13 of 14 FIR No. 340/14 P.S. Kapashera U/s. 363/366 IPC Prosecutor for the State that the prosecution has proved all the ingredients necessary for completion of the alleged offences do not have any force whereas the arguments made on behalf of defence that the accused has been falsely implicated are found to be justified.
28. In view of the aforesaid discussion, this Court is of the view that the prosecution has not been able to prove its case against the accused beyond reasonable doubts. Accordingly, accused Arvind Maurya is hereby acquitted of the charge u/s 363/366 IPC levelled against him. Bail bonds stands cancelled and Sureties be discharged, if any. Documents, if any, be returned to the rightful person against receiving and after cancellation of endorsement, if any.
29. Bail bonds and surety bonds already furnished in compliance of Section 437 (A) Cr.P.C are considered and accepted for a period of six months from today.
30. File be consigned to the Record Room after due compliance.
Announced in open Court
today on 19.10.2022 (VIPLAV DABASS)
ADDITIONAL SESSIONS JUDGE:
FAST TRACK COURT
DWARKA COURTS, SOUTH-WEST
NEW DELHI
State V/s Arvind Page 14 of 14