Delhi District Court
Fir No. 382/09 : State vs Uttam & Anr. : Ps Aman Vihar : Dod: ... on 12 May, 2015
FIR No. 382/09 : State V/s Uttam & Anr. : PS Aman Vihar : DOD: 13.05.2015
IN THE COURT OF VINOD YADAV: ADDL. SESSIONS JUDGE:
(NORTHWEST)01: ROHINI DISTRICT COURTS: DELHI
(Sessions Case No. 94/14)
Unique ID case No. 02404R0205402012
State Vs. Uttam & Anr.
FIR No. : 382/09
U/s : 363/366 IPC
P.S. : Aman Vihar
State Vs. 1. Uttam
S/o Sh. Khyali Ram
R/o Jhuggie in front of Patel Samaj
Back side of Narain Guest Home,
The Dhasoal Town, Distt. Jam Nagar,
Gujarat
2. Anil Kumar
S/o Sh. Mahender Singh
R/o B4/430, Sultan Puri
Delhi.
Date of institution of case 02.05.2014
Date of arguments : 12.05.2015
Date of pronouncement of judgment : 12.05.2015
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FIR No. 382/09 : State V/s Uttam & Anr. : PS Aman Vihar : DOD: 13.05.2015
J U D G M E N T:
Facts of the case
1. The facts of the case as born out from the record are that on 06.12.2009, at about 12.00 noon, the victim children namely G, aged about 16 years and R, aged about 14 years (hereinafter referred to as 'victim children or Prosecutrix G or Prosecutrix R') got missing from their house. Their father Sh. Vijender made efforts to search them, but all in vain and thereafter, on 14.12.2010, he approached the police station Aman Vihar and reported the matter about missing of his daughters. At that time, he did not express his suspicion on any one about kidnapping of his daughters. On the basis of statement of Sh. Vijender, case FIR in the matter was recorded u/s 363 IPC and investigation was handed over to SI Rajesh Kumar, who got flashed the wireless message and sent the information about the victim children to CRO, NCRB, SCRB, CBI as well as Zip Net and also got issued Hue and Cry notice. Thereafter, further investigation of the case was handed over to ASI Nand Kishore, who also made efforts to search the victim children and on 23.11.2010, on receipt of information from complainant, he reached at DSIDC, NDPL Sub Station and recovered prosecutrix G. Prosecutrix G produced her marriage certificate with accused Anil Kumar, affidavits of herself and her husband regarding the date of birth and also produced copy of Ration Card. On inquiry, prosecutrix G disclosed that she married accused Anil out of her own free will and consent. Prosecutrix G Page 2 of 13 FIR No. 382/09 : State V/s Uttam & Anr. : PS Aman Vihar : DOD: 13.05.2015 was medically examined at SGM Hospital, where she refused for her gynecological examination. Thereafter, custody of prosecutrix G was handed over to her parentsinlaw. Prosecutrix G disclosed about the whereabouts of her younger sister R and thereafter, prosecutrix R was recovered on 30.11.2010 from Distt. Gair Gharol Town, Jam Nagar, Gujarat, at the instance of her father Vijender and her statement was recorded. Accused Uttam was arrested in the case and after obtaining requisite transit remand of accused Uttam from the concerned court, accused as well as prosecutrix R were brought to Delhi. Prosecutrix R was also medically examined at SGM Hospital, but she refused for her gynecological examination. Statement of prosecutrix R u/s 164 Cr.P.C was got recorded. Accused Anil was kept in column no. 12. After completion of the investigation, the charge sheet was prepared and filed in the court.
Court proceedings
2. After hearing the arguments on the point of charge, on 12.02.2015, two separate charge u/s 363/366 IPC were framed against the accused Uttam and Anil Kumar by my learned Predecessor, to which, they pleaded not guilty and claimed trial.
3. In order to bring home the guilt of the accused persons, the prosecution examined as many as four witnesses, whereafter, the P.E in the matter was closed and statements of accused persons u/s 313 Cr.P.C were recorded, wherein, they claimed themselves to be innocent and having been falsely Page 3 of 13 FIR No. 382/09 : State V/s Uttam & Anr. : PS Aman Vihar : DOD: 13.05.2015 implicated in the case as father of victim children was against their marriage, but the victim children wanted to marry them and due to this reason, her father lodged a false complaint against them. They further stated that at the time of their marriage with prosecutrix R and G, they were major. Accused Uttam has further stated that he is having two children out of this wedlock and they are living happily as a family. The accused Anil has stated that prosecutrix G is untraceable for the last 3/4 years. The accused persons, however, did not lead any evidence in their defence.
Evidence recorded in the matter
4. I have heard arguments advanced at Bar by the learned Addl. PP and the learned proxy counsel for the accused persons and perused the entire material on record. Before adverting to the arguments advanced at bar, it would be appropriate to have a brief scrutiny of the evidence recorded in the matter.
5. PW1, Smt. Sarita Batra, Principal, Govt. Girls Senior Secondary School, BC Block, Sultan Puri, Delhi, has produced on record the documents with regard to the date of birth of prosecutrix R, maintained by the school in due course, inter alia stating the date of birth of victim R to be 10.10.1995. She has proved the relevant documents as Ex. PW1/A to Ex. PW1/C. During crossexamination, PW1 termed it correct that the parents of the child had not submitted any birth certificate of the child at the time of her Page 4 of 13 FIR No. 382/09 : State V/s Uttam & Anr. : PS Aman Vihar : DOD: 13.05.2015 admission in the school and no independent inquiry was conducted by the school regarding the date of birth of the child mentioned in the affidavit submitted by her parents.
6. PW2, Smt. Poornima, Admission Incharge, Govt. Girls Senior Secondary School, D Block, Sultan Puri, Delhi, has produced on record the documents with regard to the date of birth of prosecutrix G, maintained by the school in due course, inter alia stating her date of birth to be 20.07.1993. She has proved the relevant documents as Ex. PW2/A to Ex. PW2/D. During crossexamination, PW2 termed it correct that the parents of the child had not submitted any birth certificate of the child at the time of her admission in the school and no independent inquiry was conducted by the school regarding the date of birth of the child mentioned in the affidavit submitted by her parents.
7. PW3, victim R , in her evidence has claimed herself to be aged about 25 years. She is presently blessed with two children from the wedlock with accused Uttam. She has deposed in her evidence that after expiry of her mother, her father, who was in a habit of taking liquor, used to beat her and her sister and brother mercilessly. Her elder sister G asked for help from their neighbour Suresh and thereafter, with the help of said Suresh, her sister G got married with accused Anil, at Arya Samaj Mandir, Jamuna Bazar. Thereafter, her sister G and her husband/accused Anil took her to Jam Nagar, Gujarat, Page 5 of 13 FIR No. 382/09 : State V/s Uttam & Anr. : PS Aman Vihar : DOD: 13.05.2015 where they all performed her marriage with accused Uttam, cousin brother of Suresh, in a temple, but they did not inform about their marriage to their father. The marriage was duly consummated between her and accused Uttam and she is having two children from the said marriage and is living happily with her husband. Police arrested the accused Uttam from there. She and accused were brought to Delhi. In her statement recorded u/s 164 Cr.P.C, she had deposed before the ld. M.M on the same lines.
Some leading questions were put to the witness by ld. Addl. PP regarding her age and in reply to which, she stated that she did not have any age proof with her to show that she is 25 years old. She further stated that her age was under mentioned by her parents at the time of her admission in the school. Her sister G and her husband/accused Anil never enticed her in any manner and she volunteered to state that she herself had voluntarily gone with them because of the torture and atrocities of her father.
During crossexamination by learned proxy counsel, the witness termed it correct that she did not have any birth certificate in her favour issued by Municipal Corporation. She further stated that she is happily married and settled with accused Uttam, with her two children.
8. PW4, ASI Nand Kishore, is the investigating officer of the present case and he deposed that 10.11.2010, further investigation of present case was entrusted to him me and during investigation, on 23.11.2010, on the basis of information received from complainant Shri Vijender Singh, he along with Page 6 of 13 FIR No. 382/09 : State V/s Uttam & Anr. : PS Aman Vihar : DOD: 13.05.2015 Lady Ct.Sudesh and complainant Vijender went to a room, constructed in NDPL Transformer premises, where at the pointing of complainant, his daughter/prosecutrix G was taken into custody by L/Ct.Sudesh. He further stated that she produced her marriage certificate Ex. PW4/A with accused Anil, her affidavit Ex.PW4/B, wherein she mentioned her date of birth as 20.07.1991 and copy of her Ration Card Ex. PW4/C showing her age as 18 years on that day and since, her age was above 18 yrs and there was no evidence against accused Anil, he released him and the custody of prosecutrix G was given to him being his legally wedded wife. He also deposed about medical examination of prosecutrix G at SGM Hospital. He further deposed that during the further investigation, he came to know about whereabout of prosecutrix R and after seeking permission from senior officers, he along with the complainant, L/Ct.Sugan Rani and Ct.Rakesh left for Gujarat on 28.11.2010 and reached there on 30.11.2010 and after seeking assistance from local police, he went to jhuggis opposite Patel Samaj and behind Swami Narain Temple, District Jamnagar, Gujarat and recovered prosecutrix R on the identification of her father Vijender Singh, vide recovery memo Ex. PW4/F. He further deposed about arrest and personal search of the accused Uttam vide arrest memo Ex.PW4/G and personal search memo Ex.PW4/H and about disclosure statement Ex. PW4/J made by the accused. The witness further deposed about obtaining transit remand of accused Anil vide application Ex.PW4/K, about bringing the accused Uttam and the victim R to Delhi and about medical examination of prosecutrix R Page 7 of 13 FIR No. 382/09 : State V/s Uttam & Anr. : PS Aman Vihar : DOD: 13.05.2015 vide MLC Ex.PW3/A and that of accused vide MLC Ex. PW4/N and about seizure of exhibits of the accused vide seizure memo Ex. PW4/O. He further deposed about getting recorded the statement of prosecutrix R u/s 164 Cr.PC vide his application Ex.PW4/P and about obtaining copy thereof vide his application Ex.PW4/Q. He further deposed about handing over the custody of prosecutrix R to her sister G, as per directions of the court, about deposit of exhibits in Mal khana and about collecting the age of prosecutrix R from her school. He further stated that as per the directions of Court, he had gone to serve the summons upon the complainant Vijender and his daughter G, but every time both the witnesses were untraceable despite his best efforts.
9. In the present case, total 15 witnesses were cited by the prosecution, out of which, only four witnesses were examined and considering the testimonies of PW3 prosecutrix R, nothing incriminating was found against the accused persons. Further, PW4 ASI Nand Kishore in his evidence has clearly stated that at the time of recovery of prosecutrix G, she produced her marriage certificate Ex. PW4/A with accused Anil and she also produced her affidavit as Ex. PW4/B and copy of ration card as Ex. PW4/C showing her age to be more than 18 years on that day and as such, he released accused Ail and custody of prosecutrix G was handed over to him being his legally wedded wife. Further, summons issued to the complainant Vijender returned unexecuted with the report that said Vijender had left the said address after selling his house, about three years ago and he was not traceable and despite Page 8 of 13 FIR No. 382/09 : State V/s Uttam & Anr. : PS Aman Vihar : DOD: 13.05.2015 efforts, he could not be traced. PW4 ASI Nand Kishore has stated during his examinationinchief that he had gone to serve the summons upon the complainant Vijender and prosecutrix G, but both the witnesses were found untraceable and despite his best efforts, they could not be traced. All the remaining witnesses were found to be either from the police who had conducted the investigations and joined the investigations with the IO or the doctors, who had medically examined the accused as well as prosecutrix. Since there is no other witness cited or examined by the IO, who can link the accused with the commission of offence, it was found that no useful purpose would have been served by recording further evidence. Accordingly, prosecution evidence was closed.
10. In his statement recorded u/s 313 Cr.P.C, both the accused have claimed false implication in the matter by the father of the prosecutrix G and R. Accused Uttam has admitted having married the prosecutrix R and having fathered two children from this wedlock. He has categorically stated that the prosecutrix R was major at the time of marriage and he had neither taken her away nor enticed her in any manner, for the marriage. So far as accused Anil is concerned, he also admitted having married with prosecutrix G, who was major at the time of marriage and stated that prosecutrix G is untraceable for the last 3/4 years.
11. The learned Addl. PP has very vehemently argued that even if, the Page 9 of 13 FIR No. 382/09 : State V/s Uttam & Anr. : PS Aman Vihar : DOD: 13.05.2015 prosecutrix R has not supported the case of prosecution, considering the age of the victim children as borne out from documents Ex. PW1/A to Ex. PW1/C and Ex. PW2/A to Ex. PW2/D, the consent if any, of the victim children, was immaterial and the accused persons are guilty of committing the offences for which, they stand charged in the matter.
12. Per contra, the learned proxy counsel has disputed the age of the victim children as mentioned in documents Ex. PW1/A to Ex. PW1/C and Ex. PW2/A to Ex. PW2/D, on the ground that the parents of the victim children had not produced any certificate issued by the Municipal Corporation or any other statutory authority with regard to their date of birth. Further, prosecutrix R herself stated in her evidence that at the time of her admission in the school, her age was under mentioned by her parents, meaning thereby that at the time of her eloping with the accused, she had presumably attained sufficient maturity to decide about her future.
13. It is apparent from record that except for the documents i.e. Ex. PW1/A to Ex. PW1/C and Ex. PW2/A to Ex. PW2/D, there is no other certificate of birth of victim children, which is on record. The entries of the date of birth got recorded in the school record of victim children were as per the whims and fancies of their parents. In the case of Birdi Mal Singhavi vs. Anand Purohit, 1988 Supp. SCC 601, it has been held that no evidentiary value can be given to Date of Birth entry in absence of material Page 10 of 13 FIR No. 382/09 : State V/s Uttam & Anr. : PS Aman Vihar : DOD: 13.05.2015 on which entry is made.
14. A perusal of the entire evidence recorded in the matter, further reveals that the accused persons Uttam and Anil Kumar had not done any overt act in either taking away or enticing the prosecutrix G and R from the lawful guardianship of her father.
15. In this regard, it would 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."
16. It has also been held in 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 Page 11 of 13 FIR No. 382/09 : State V/s Uttam & Anr. : PS Aman Vihar : DOD: 13.05.2015 the Hon'ble Delhi High Court 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 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. ...."
17. In the present case also, the element of 'taking away' or 'enticement' is found to be lacking. In view of the material on record, it is evident that both the victim children were willing and consenting party and it seems that everything had happened with their sweet will. In these circumstances, the factum of kidnapping of victim children does not stand proved. If the law laid down in the aforesaid authorities is applied to the facts of the present case, then it would be absolutely clear that the accused persons are not on the wrong side of law in the matter. Even otherwise, the accused Uttam and prosecutrix R are themselves parents of two children.
18. In view of the above discussions, it is hereby held that the prosecution has failed to establish the charges against the accused Uttam and Anil Kumar. Accused persons accordingly stand acquitted. They are on bail. Their bail bonds canceled, sureties discharged.
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19. File be consigned to Record Room.
(Announced in the open ) (Vinod Yadav)
(Court on 12.05.2015) Addl. Session Judge
(NorthWest)01
Rohini/Delhi
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