Delhi District Court
The State vs Siddharth S/O Sh Rajesh on 27 May, 2014
D.O.D 27.5.2014 FIR no. 111/2011
P.S South Rohini
u/s 363/366 IPC.
IN THE COURT OF SH RAJESH KUMAR GOEL:
ADDITIONAL SESSION JUDGE -5 (NORTH),
ROHINI , DELHI
SESSION CASE NO. : 58/14
UID NO . : 02404R0271692011
FIR no :111/2011
P. S : South Rohini
u/s 363/366 IPC.
The State versus Siddharth S/O Sh Rajesh
R/O H.No 82, Sunaron Wali Gali ,
Village Mangol Pur Kalan , Delhi
Date of committal to session court : 30.05.2012
Date of argument : 27.05.2014
Date of order : 27.05.2014
JUDGMENT
1. Facts and circumstances giving rise to the present case, as per the story of the prosecution are that:
a) on 16.5.2011, Naresh Kalra (PW1) father of one minor girl 'S' ( identity withheld) lodged a complaint ExPW1/A to the police stating that his daughter namely 'S' aged about 14 years has been kidnapped on 16.5.2011 at around 09:30 SC No. 58/14 State vs Siddharth (Page 1 of 16 ) D.O.D 27.5.2014 FIR no. 111/2011 P.S South Rohini u/s 363/366 IPC.
pm by one Siddharth (accused). A request was made to the police to search the girl. On the basis of the aforesaid complaint ExPW1/A, present FIR was registered.
b) On 6.6.2011, on receipt of secret information about presence of girl 'S' and the accused at railway station of Shakur Basti, S.I Praveen Kumar (PW8) IO alongwith Naresh Kalra (PW1) father of the girl 'S', constable Vishram (PW4) and lady constable Shipra (PW7) reached railway station Shakur Basti and on pointing out of Naresh Kalra(PW1) , accused Siddharth and girl 'S' were apprehended. Since the girl was minor, therefore, accused was arrested. Girl 'S' was taken for medical examination where she refused for any kind of medical examination. Statement of the 'S' was got recorded before ld MM u/s 164 CrPC.
d) After investigation , accused was chargesheeted for offences u/s 363/366 IPC.
e) Vide order dated 03.8.2011, Ld MM took the cognizance of the offences and subsequently, since the offence u/s 366 IPC was exclusively triable by the court of sessions, therefore , vide order dated 30.5.2012 , case was committed to the court of sessions.
2. Vide order dated 16.10.2012. Ld Predecessor of this court decided the charges and accordingly, charges u/s 363/366 IPC were framed against the accused to which he pleaded not guilty and claimed to be tried.
3. In order to prove its case, prosecution has examined ten witnesses.
SC No. 58/14 State vs Siddharth (Page 2 of 16 )
D.O.D 27.5.2014 FIR no. 111/2011
P.S South Rohini
u/s 363/366 IPC.
4. PW1 Naresh Kumar is the father of the 'S' who lodged the complaint ExPW1/A alleging that his daughter has been kidnapped by accused Siddharth. He also appears to be a witness of recovery of his daughter 'S' from the possession of the accused Siddharth. He deposed that after two days of lodging the report , his daughter 'S' was recovered from the possession of the accused Siddharth and he was called by the police in the police station. PW1 was resiling from his previous statement therefore he was cross examined by ld Adll PP for the state.
5. PW2 'S' is the victim . She deposed that accused was known to her for the last 2 ½ years from today i.e 18.12.2012. They used to go together for roaming in the park very frequently without disclosing the same to the family members. In January, 2011, when she was studying in 9th standard she had gone to Amritsar with Siddharth with her own consent and after three days, she came to know that her family members came to know about her love affair. Her father scolded her and made her understand about the pros and cons of the said affair. On that day, accused and his family members were also present. Family members of the SC No. 58/14 State vs Siddharth (Page 3 of 16 ) D.O.D 27.5.2014 FIR no. 111/2011 P.S South Rohini u/s 363/366 IPC.
accused also made him understand not to involve in such kind of activity to which accused agreed. She further deposed that her father had lodged a complaint against the accused, when she had gone to Amritsar. She further deposed that police recorded her statement and she was got recovered from the possession of the accused from Railway Station Shakur Basti vide recovery memo ExPW2/A. Ms 'S' deposed that she was taken to the hospital by police where she refused for her internal medical examination. Her statement u/s 164 CrPC ExPW2/B was recorded. PW2 was also resiling from her previous statement therefore she was also cross examined by the ld Addll P.P for state.
6. PW 3 HC Balwan Singh is the duty officer who proved the registration of FIR ExPW3/B.
7. PW4 Constable Vishram is the witness who was with the IO during investigation.
8. PW5 Dr. Dolly Bansal appeared on behalf of Dr. Manisha Gupta and deposed that MLC of 'S' was prepared by Dr. Manisha Gupta which is ExPW5/A and as per the MLC 'S' refused for any kind of medical SC No. 58/14 State vs Siddharth (Page 4 of 16 ) D.O.D 27.5.2014 FIR no. 111/2011 P.S South Rohini u/s 363/366 IPC.
examination.
9. PW6 Dr. Manish deposed that on 6.6.2011, he medically examined accused Siddharth and prepared MLC ExPW6/A.
10. PW7 Lady Constable Shipra is another formal witness who on 6.6.2011 was with the IO . She is also witness to the recovery of 'S' from the possession of the accused .
11. PW8 S.I Praveen Kumar is the IO . He deposed that on 6.6.2011, on receipt of secret information that accused Siddharth alongwith 'S' are present at railway station of Shakurbasti and if raided they could be apprehended. Complainant Naresh Kalra (PW1) was informed about the same and thereafter, he (PW8) alongwith Constable Vishram (PW4) and lady constable Shipra and complainant Naresh Kalra reached railway station of Shakurbasti and on the pointing out of the complainant Naresh Kalra(PW1), accused Siddharth and 'S' were apprehended while they both were going towards cement shed at railway station of Shakur basti .
He further deposed that recovery memo ExPW2/A in
SC No. 58/14 State vs Siddharth (Page 5 of 16 )
D.O.D 27.5.2014 FIR no. 111/2011
P.S South Rohini
u/s 363/366 IPC.
respect of 'S' (PW2) was prepared and accused
Siddharth was arrested vide memo ExPW1/E. His
personal search was conducted vide memo ExPW1/F and his disclosure statement was recorded vide memo ExPW1/D. Accused and 'S' were sent for medical examination . Accused was examined vide MLC ExPW6/A and 'S' was examined vide MLC ExPW5/A wherein she refused for any kind of medical examination. He moved application ExPW8/A (ExP-1) before the ld MM for recording statement u/s 164 CrPC of 'S' which was recorded by ld MM vide ExPW2/B. PW8 was cross examined by the ld counsel for the accused.
12. PW9 Sukhbir Singh Dahiya is the vice principal , Govt Sarvodaya Vidyalaya, Sector 3, Rohini , Delhi from where victim 'S' said to have studied. PW9 proved letter dated 16.6.2011 ExPW9/A . He deposed that as per the record pertaining to the admission of the 'S', her date of birth is 31.8.1997.
13. PW10 Ms Renu Mann, Sub registrar Birth & Death, produced the record pertaining to certificate no. 042882 and birth registration no. 3108 and proved the certificate as ExPW1/C and deposed that as per their SC No. 58/14 State vs Siddharth (Page 6 of 16 ) D.O.D 27.5.2014 FIR no. 111/2011 P.S South Rohini u/s 363/366 IPC.
record the date of birth of female child is 31.8.1997.
14. Thereafter, prosecution evidence was closed and statement of accused u/s 313 CrPC was recorded wherein he denied the allegations, however, he did not opt to lead any evidence in his defence .
15. I have heard the ld Addl P.P for the state and the ld counsel for the accused . I have also perused the record very carefully.
16. Accused Siddharth is facing trial for offences u/s 363/366 IPC on the allegations that he enticed and had taken minor 'S' aged about 14 years from the lawful guardianship of her parents and he kidnapped said girl in deceitful manner with intend to compel her to marry with him against her will.
17. As far as section 366 IPC is concerned it says that " in order to prove the charge under section 366 I.P Code against the accused the following ingredients have to be established (1) that the accused induced the complainant to go from any place ;(2) that such inducement was by deceitful means;(3) that such SC No. 58/14 State vs Siddharth (Page 7 of 16 ) D.O.D 27.5.2014 FIR no. 111/2011 P.S South Rohini u/s 363/366 IPC.
kidnapping or abduction took place with intent that the complainant may be seduced to illicit intercourse ;and (4) that the accused knew it to be likely that the complainant may be seduced to illicit intercourse as a result of her kidnapping or abduction" .
18. In the present case, there is no allegation that any deceitful means were used by the accused to seduce her to sexual intercourse . Prosecution has also not been able to establish that the kidnapping took place with such an intention for seducing the minor girl.
19. PW2 victim has categorically stated that nothing had happened with her during her stay with the accused at Amritsar. She was cross examined by the ld Addll PP for the state . She denied of having stated to the police in her statement u/s 161 CrPC that accused told her that he would bring the dispute to an end by marrying him, so that nobody could say anything and she under the influence and inducement of accused went with him from her house. She further stated that they had not established any physical relations with each other. There is no evidence to show that accused ever compelled 'S' to marry him. In these circumstances, the SC No. 58/14 State vs Siddharth (Page 8 of 16 ) D.O.D 27.5.2014 FIR no. 111/2011 P.S South Rohini u/s 363/366 IPC.
ingredients of section 366 IPC are not attracted.
20. Now we advert to the section 363 IPC.
21. Section 361 , IPC reads :
"361. Kidnapping from lawful guardianship. - Whoever takes or entices any minor under sixteen years of 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 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.
Explanation. - The words 'lawful guardian' in this section include any person lawfully entrusted with the care of 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 in good faith believes himself to be entitled to lawful custody of such child, unless such act is committed for an immoral or unlawful purpose."
22. The object of this section seems as much to protect the minor children from being seduced for improper purposes as to protect the rights and privileges of guardians having the lawful charge or custody of their minor wards. The gravamen of this SC No. 58/14 State vs Siddharth (Page 9 of 16 ) D.O.D 27.5.2014 FIR no. 111/2011 P.S South Rohini u/s 363/366 IPC.
offence lies in the taking or enticing of a minor under the ages specified in this section, out of the keeping of the lawful guardian without the consent of such guardian. The words "takes or entices any minor ..... out of the keeping of the lawful guardian of such minor" in Section 361, are significant. The use of the word "Keeping" in the context connotes the idea of charge, protection, maintenance and control; further the guardian's charge and control appears to be compatible with the independence of action and movement in the minor, the guardian's protection and control of the minor being available, whenever necessity arises.
23. On plain reading of this section the consent of the minor who is taken or enticed is wholly immaterial : it is only the guardian's consent which 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 of the keeping of the SC No. 58/14 State vs Siddharth (Page 10 of 16 ) D.O.D 27.5.2014 FIR no. 111/2011 P.S South Rohini u/s 363/366 IPC.
lawful guardian would be sufficient to attract the Section.
24. Thus the essential ingredients of the offence are taking or enticing any minor 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. The words taking or enticing have been interpreted by the Hon'ble Supreme Court to mean "to cause to go", "to escort" or "to get into possession" in Thakorlal D. Vadgama Vs. The State of Gujarat (1973) 2 SCC 413. Thus, taking away would not only include moving forward or backward but also taking into possession the physical body of the minor or person of unsound mind.
25. First of all take the testimony of PW1 Naresh Kalra who is claiming to have lodged the complaint ExPW1/A on 16.5.2011 regarding kidnapping of his daughter. He deposed that after two day of lodging of complaint, his daughter was recovered from the possession of the accused Siddharth and he was called by the police in the SC No. 58/14 State vs Siddharth (Page 11 of 16 ) D.O.D 27.5.2014 FIR no. 111/2011 P.S South Rohini u/s 363/366 IPC.
police station. He was cross examined by the ld Adll PP for the state. He denied of having made any statement on 6.6.2011 regarding recovery of his daughter 'S' from the possession of the accused Siddharth in his presence.
26. He also denied of having stated so to the police that he saw his daughter 'S' alongwith accused Siddharth going towards the Cement Shed near railway station. He has denied of having made any signatures at the recovery memo . PW1 was cross examined by the ld counsel for the accused. During his cross examination, he replied that the complaint ExPW1/A was written by his brother Suresh Kalra and he had not seen accused Siddharth taking away his daughter 'S' . He further replied that he was told by his mother on telephone that cousin sister of accused had come to their house and had whispered something to 'S' and thereafter 'S' had gone missing since one hour. He immediately went to the police station and lodged the report.
27. From the testimony of PW1, one thing is clear that though he is not a witness to the kidnapping of his daughter but on 16.5.2011, he found his daughter 'S' missing and the complaint ExPW1/A was lodged.
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D.O.D 27.5.2014 FIR no. 111/2011
P.S South Rohini
u/s 363/366 IPC.
28. That being so, the statement of the PW2 Ms 'S' holds the key of the present case. She deposed that she knows accused Siddharth for the last 2 ½ years from today. She and accused Siddharth used to go together for roaming in the park very frequently without disclosing it to her family members. In January 2011, when she was studying in 9th standard, she went to Amritsar with the accused Siddharth with her consent and they came back after three days. Thereafter, her family members came to know about their love affair. Her father scolded her and made her understand about the pros and cons of said affair. Accused and his family members were also present at that time and they made accused understand not to involve in such activity to which accused agreed. Her father lodged a complaint against the accused, when she had gone to Amritsar. Police recorded her statement after she was recovered from the railway station Shakur basti, Rani Bagh, Delhi. The recovery memo was prepared by the police which is ExPW2/A which bears her signatures at point B and signatures of accused Siddharth at point C. She was taken to the hospital by the police where she refused for medical examination. Her statement u/s 164 CrPC was recorded by the ld MM.
SC No. 58/14 State vs Siddharth (Page 13 of 16 )
D.O.D 27.5.2014 FIR no. 111/2011
P.S South Rohini
u/s 363/366 IPC.
29. PW2 'S' was cross examined by the ld APP for the state by she has not been cross examined by the accused on the aforesaid facts. The testimony of PW2 has gone unrebutted and unchallenged . There is nothing on record to reject the testimony of PW2. From the testimony of PW1 and PW2 , prosecution has able to establish that in the year 2011 'S' had gone with the accused to Amritsar and her father had lodged a complaint. It is also established that she was recovered from the railway station Shakurbasti in the presence of accused Siddharth vide seizure memo ExPW2/ A . The only objection which accused appears to have taken is that 'S' had gone with him with her consent and she was major.
30. PW1 Naresh Kalra , who is the father of 'S' deposed that the date of birth of 'S' is 31.9.1997 ( 31.8.1997, there appears to be typographical mistake in the testimony of PW1 in this regard). Prosecution has examined one Sukhbir Singh Dahiya , Vice Principle , Govt Sarvodya Vidyalya , Sector 3 , Rohini as PW9 who produced the record pertaining to the admission of 'S' and deposed that as per their record the date of birth of SC No. 58/14 State vs Siddharth (Page 14 of 16 ) D.O.D 27.5.2014 FIR no. 111/2011 P.S South Rohini u/s 363/366 IPC.
'S' is 31.8.1997 . He further deposed that they recorded the said date of birth on the basis of certificate issued by the Government National Capital Territory ExPW9/A . Similarly, PW10 , Ms Renu Mann , Sub Registrar ( birth & death) west Zone, Rajouri Garden also produced the record and deposed that as per their record the date of birth of 'S' is 31.8.1997. Accused has not disputed the aforesaid record though, these witnesses were cross examined . From the documents on record , it stands proved that on the date of occurrence i.e 16.5.2011, 'S' whose date of birth was 31.8.1997 , was minor.
31. As stated herein above , it also stands proved that she was taken to Amritsar by the accused and she was recovered on 6.6.2011 from Sakurbasti Railway Station , Delhi. In such type of cases when a girl of aged around 14 years was taken or enticed then the consent of such minor is immaterial. Accordingly, the ingredients of section 363 IPC stands proved.
32. In the light of aforesaid discussion, Court is of the view that prosecution has been successful in establishing the guilt of the accused in respect of offence u/s 363 IPC but failed to prove the case for the offence SC No. 58/14 State vs Siddharth (Page 15 of 16 ) D.O.D 27.5.2014 FIR no. 111/2011 P.S South Rohini u/s 363/366 IPC.
u/s 366 IPC. Accordingly, accused Siddharth stands acquitted for offence u/s 366 IPC but stands convicted for offence u/s 363 IPC.
Announced in the open (Rajesh Kumar Goel) Court today i.e 27.5.2014 ASJ-5, North Rohini Court SC No. 58/14 State vs Siddharth (Page 16 of 16 )