Delhi District Court
State vs . Ashok Kumar on 24 August, 2007
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IN THE COURT OF SH. RAJNEESH KUMAR GUPTA, ASJ,
TIS HAZARI COURTS, DELHI.
SC No. 52/06
FIR No. 228/06
PS Ashok Vihar
U/s 363/366 IPC
State Vs. Ashok Kumar
S/o Sh. Daulat Ram
R/o H. No. F-1, 206,
Sunder Nagri, PS
Nand Nagri, Delhi.
Date of Arguments : 20.8.07
JUDGMENT
In brief the case of the prosecution is that on receiving of DD no. 22-A ASI Bhagwan Singh went to the spot i.e at Jhuggi in front of Mata Jai Kaur Public School where statement of Smt. Durji Devi (complainant) was recorded and on the basis of that statement, the FIR was registered.
As per the case of the prosecution at about 6.30 pm on 26.3.06 when the complainant was present in her house, her 2 daughter Komal (prosecutrix) aged about 6 years was playing outside the house. When the complainant came out and had not seen the prosecutrix, she searched for her and heard the cries of the prosecutrix in the bus on the road. Complainant went inside the bus and saw that the accused was trying to press her mouth, on account of which she was crying. On seeing the complainant, accused ran away from the bus. Prosecutrix has told the complainant that she was taken by the accused in the bus on the pretext of giving her toffee. Accused was arrested at the pointing out of the complainant from the park on the same day.
2. After the investigation of the case, IO has filed the charge-sheet against the accused U/s 363/366 IPC and charge U/s 363/366-A IPC was framed against the accused to which he pleaded not guilty and claimed trial.
3. In order to prove its case prosecution has 3 examined 8 witnesses and statement of accused U/s 313 Cr. P.C. was recorded in which he has denied the case of the prosecution and had not examined any witness in his defence.
4. I have heard the Ld. APP for the state and Ld. counsel for the accused and perused the evidence on record.
PW1 had deposed that she know the accused as he was working as a cleaner in the buses which used to park in front of Mata Jai Kaur School. She do not remember the date and month but it is a matter of this year at about 7.00 pm she was present near her house and was filling water from the water tap. Her daughter Komal (prosecutrix) aged about 6 years was standing beside her. When she filled up the water, she saw her daughter missing. She searched her here and there. Her daughter was weeping near the gate of a bus which was parked near police booth and the accused was running from the side of the gate of the bus. She picked up 4 her daughter and asked her as to how she came there on which the prosecutrix told her that the accused had allured her on the pretext of giving a toffee and she followed him. Prosecutrix further told that the accused had slapped her. She informed the police on 100 number. Police of 100 number and local police came there and local police recorded her statement Ex. PW1/A. The police had arrested the accused at her instance vide his arrest memo Ex. PW1/B. Personal search of the accused was also conducted vide memo Ex. PW1/C. She had shown the place of occurrence to the police and police prepared the site plan. She had produced her daughter before the Magistrate on the asking of the police and the concerned Magistrate had recorded the statement of the prosecutrix and prosecutrix was also interrogated by the police.
In cross-examination she had deposed that prosecutrix was present with her when she was taking the water from the water tap and when she went back to her 5 house and returned she did not find the prosecutrix at the spot. Other children of her locality were playing with her daughter near the bus and were also present near the bus. She came to know about the missing of her daughter in five minutes from her last seen and found her daughter within five minutes from her missing. She has not seen the accused taking her daughter.
PW2 Komal, the prosecutrix had deposed that she was playing near the Jhuggi. Accused came to her and on the pretext of giving her the toffee, he took her inside the bus. She started weeping. Accused gave a slap on her face and ran away. Her mother came there.
In cross-examination she had deposed that she was playing near the bus. She never boarded the bus while playing. Accused had taken her inside the bus.
PW3 HC Tasvir Singh has proved the FIR as Ex. PW3/A. PW4 Ajay Sharma had deposed that accused was 6 the helper on his bus no. DL 1PB 7058. On 26.3.06 he had parked his bus near Kulachi Hansraj School, Ashok Vihar, Delhi and he went to his house. Accused remained on the vehicle.
PW6 Lakhan has not supported the case of the prosecution. He had denied that he had given any statement to the police. He had also denied that he informed the police at 100 number about the incident.
PW7 Sh. Devender Kumar Jangala, Ld. MM has proved the statement of the prosecutrix recorded U/s 164 Cr. P.C. as Ex. PW7/A and his certificate as Ex. PW7/B. PW8 ASI Balwan Singh, the Investigating Officer of the case, had deposed that on 26.3.06 on receipt of DD no. 22-A which is Ex. PW8/A, he went to the spot where he recorded the statement of Durji Devi as Ex. PW1/A and made his endorsement Ex. PW8/B and got the case registered. He tried to trace out the accused along with the complainant. They went in a park in Sawan Park where the accused was 7 arrested at the pointing out of complainant. He also got recorded the statement of the prosecutrix U/s 164 Cr. P.C. PW5 Ct. Sunil Dutt had accompanied the PW8 to the spot and he had supported the testimony of PW8.
5. Ld. counsel for the accused has argued that accused has been falsely implicated in the case. Accused has not kidnapped the prosecutrix. Prosecution has failed to prove its case against the accused. The prosecution witness Lakhan has not supported the case of the prosecution. Prosecutrix is a child witness and her testimony is not reliable as she is a tutored witness.
6. It has been observed by the Hon'ble Supreme Court in AIR 2004 SC 227 that :
"On plain reading of section 361 IPC, the consent of the minor who is taken or entice is wholly immaterial: it is only the guardian's consent which 8 takes the case out of its purview. Nor is it necessary that the taking or enticing must be shown to have been by means of force or fraud. Persuasion by the accused person which creates willingness on the part of the minor to be taken out the keeping of the lawful guardian would be sufficient to attract the section."
7. PW2 is the material witness of the case. She has supported the case of the prosecution as she has deposed that on the pretext of giving a toffee accused had taken her inside the bus. She started weeping. Accused ran away from there after giving a slap on her face and her mother came there.
Testimony of PW2 is also corroborated by her statement recorded U/s 164 Cr. P.C. which is Ex. PW7/A. PW2 has been cross-examined but no suggestion has been put to the PW2 that she was tutored or that she was under the fear or 9 coercion to depose against the accused.
I do not find any ground which shows that the PW2 is a tutored witness and is not a reliable witness.
8. PW1 has also supported the case of the prosecution as she has deposed that she found the prosecutrix missing when she searched her and found the prosecutrix inside the bus and she was weeping. Accused Ashok was running away from the side of the bus. Her statement was recorded by the police and accused was arrested at her instance from the Park. She has also deposed that prosecutrix has told her that accused had taken the prosecutrix on the pretext of giving her toffee. PW1 has also been cross-examined by the accused but no material has been come on record to disbelieve her testimony. She has no grudge or reason to depose against the accused. In my view PW1 is a reliable witness.
The fact that PW6 had not supported the case of the 10 prosecution does not create any doubt in the case of the prosecution because the case U/s 363 IPC is fully proved from the testimonies of PW1 and PW2.
9. In view of the above discussions, I am of the opinion that prosecution has been able to prove its case beyond reasonable doubt that the accused enticed the prosecutrix aged about 6 years out of keeping of the complainant who is mother of the prosecutrix without her consent.
10. To prove the offence U/s 366-A IPC prosecution has to prove the following ingredients :
(a) that a minor girl below the age of 18 years is induced by the accused;
(b) that she is induced to go from any place or to do any act, and
(c) that she is so induced with intent that she may be 11 or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person.
So, one of the essential ingredient to prove the offence U/s 366-A IPC is that the accused had induced the prosecutrix with intent that she may be or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person.
Facts and circumstances proved on record are that the accused enticed the prosecutrix and took her inside the bus and prosecutrix started weeping. Accused gave her a slap on her face and ran away.
In my view from these facts and circumstances proved on record the intent as required by the section 366-A IPC has not been proved against the accused. There is no evidence which proves that accused has done any act which shows that the prosecutrix was forced or seduced to illicit intercourse. So, section 366-A IPC is not proved against the accused.
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11. In view of the above discussions, the accused is acquitted for the offence punishable U/s 366-A IPC, however accused is convicted for the offence punishable U/s 363 IPC. Announced in the open court (RAJNEESH KUMAR GUPTA)today i.e. on 24.8.07 Additional Sessions Judge, Tis Hazari Courts, Delhi.