Delhi District Court
State vs . Salman on 23 January, 2014
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE(NDPS)
DWARKA COURTS, NEW DELHI
SC No.70/1/13
FIR No.134/13
U/s 363/366 IPC
PS Bindapur
State
Vs.
Salman Khan s/o Sh Babuddin
.......... Accused
Challan filed on : 30.07.2013
Reserved for order on : 15.01.2014
Judgment delivered on :23.01.2014
JUDGMENT
Briefly stated the facts of the prosecution case are that on 22.03.2013 complainant Shyam Lal came to PS and gave his statement Ex.PW2/A on which ASI Devender Yadav made his endorsement Ex.PW10/A and got the case registered. In his statement Shyam Lal has alleged that his daughter Arti aged about 17 years went out of house on 20.3.13 without disclosing anything and she made her search but she could not be traced. He suspects that State Vs. Salman FIR no. 134/13 Page No.1 of 18 Salman s/o BabuKhan r/o F124 Sehyog Vihar had taken away his daughter after enticing and allluring her. On the basis of this statement present case was registered. The investigation was conducted. On 29.3.13 Salman and prosecutrix Arti came to PS and handed over their 'nikah' certificate to W/ASI Kusum. Accused was arrested and both were medically examined. Statement of prosecutrix u/s 164 Cr.PC was got recorded 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 11.10.2013.
3. The charge against the accused Salman was framed u/s 363/366 IPC on 11.11.2013 to which the accused pleaded not guilty and claimed trial. Hence the case was fixed for Prosecution Evidence.
4. The prosecution, in order to prove its case against accused Salman, in all has examined as many as 10 witnesses. State Vs. Salman FIR no. 134/13 Page No.2 of 18
5. PW1 ASI Roop Singh is the FIR recorder and he brought the copy of FIR no.134/13 which is Ex.PW1/B.
6. PW2 Sham Lal is the complainant and he has stated that his daughter Arti aged about 17 years was missing from his house and he lodged complaint to the police. He gave description of his daughter. She did not appear in last paper of her 10th Board Examination. Due to lapse of time he could not recollect his statement. He has deposed that accused Salman had taken his duaghter after enticing her. Police recorded his statement Ex.PW2/A. After 1012 days his daughter was brought by the police alongwith accused. His daughter went missing on 20.3.2013.
7. PW3 Arti is the prosecutrix and she has deposed that her date of birth is 11th Aug 1995. On 20.3.1913 she left the house with accused to Budaun UP where they both got marrired on 23.3.13 and on 29.3.13 they came to PS Bindapur where she handed over copy of their nikah. Her statement was recorded by Magistrate, the same is Ex.PW3/A.
8. PW4 Murari Jha is the TGT from Sarvodaya Vidyalya State Vs. Salman FIR no. 134/13 Page No.3 of 18 no.3 and he has stated that as per record the date of birth of Arti is 11.8.95 and certificate issued by Principall is Ex.PW4/A.
9. PW5 Maulana Usman is the Maulana in Mosque and he solemnized the nikah of Mohd. Salman with Arti @ Zoya on 22.3.2013. He issued certificate Ex.PW5/A.
10. PW6 Ms.Swati Katiya, Ld.MM has deposed that she recorded the statement of prosecutrix u/s 164 Cr.PC which is Ex.PW3/A.
11. PW7 Ct. Raj Kumar has stated that accused was arrested when both prosecutrix and Salman came to PS and nikah certificate was taken into possession vide memo Ex.PW7/A. The accused was arrested vide memo Ex.PW7/B and his personal search was conducted vide memo Ex.PW7/C.
12. PW8 ASI Kusum is also the witness of arrest and personal search of accused Salman and that they came to PS and thereafter medically examined. She has further deposed that on 30.3.2012 she moved an application for recording of statement u/s State Vs. Salman FIR no. 134/13 Page No.4 of 18 164 Cr.PC. The application is Ex.PW6//A. After recording of statement she collected the copy of the same.
13. PW9 Dr.S.Renubala has appeared for Dr.Renuka Gupta who prepared MLC of prosecutrix Ex.PW9/A.
14. PW10 ASI Devender Singh is the IO of this case and he has deposed that on 22.3.13 Shyam Lal came to PS and gave his statement Ex.PW2/A on which he made endorsement Ex.PW10/A and got the case registered. He brought the documents of marriage from Budaun and collected her age proof.
15. 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 and they both married with consent of each other. He did not opt to lead defence evidence. Therefore the case was fixed for final arguments.
16. I have heard the arguments from the Ld. Counsel for the accused as well as Ld. APP for the State. During the course of State Vs. Salman FIR no. 134/13 Page No.5 of 18 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. As far as the age of the prosecutrix is concerned it is submitted that the age recorded in the school certificate has not been recorded on the basis of certificate issued by Municipal Corporation and therefore it cannot be relied. It is submitted that accused may kindly be acquitted.
17. 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 was taken away by the accused, her age was not 18 years. So, accused may kindly be convicted.
18. On analyzing the testimonies of witnesses, it is revealed that PW3 Arti is the prosecutrix and PW2 Shyam Lal is the complainant and father of the prosecutrix and they are the main star witnesses 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 State Vs. Salman FIR no. 134/13 Page No.6 of 18 record. In this case prosecutrix PW3 Arti has clearly stated that she left her house and went with accused to Budaun where they both got solemnized their marriage on 23.3.13. In cross examination she has stated that she accompanied the accused Salman on her own free will. She married with accused Salman on her own will without any pressure. I have also considered her statement recorded u/s 164 Cr.PC by PW6 Ms. Swati Katiyar, Ld. MM wherein the prosecutrix has stated that she had gone with accused Salman on her own free will and got married there. She loves Salman and wants to live with him. She does not want to stay with her parents. She will be 18 years on 11.8.13. 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 with him only.
19. PW2 Shyam Lal is the complainant and father of prosecutrix who has stated that Salman had taken his daughter away after enticing her. She was 17 years of age. He lodged the complaint Ex.PW2/A. I have also perused his cross examination wherein he has stated that he had not seen his daughter any time prior to this case with accused Salman Khan. First time when his daughter has gone missing with Salman and she was taken to Rajasthan by him at that State Vs. Salman FIR no. 134/13 Page No.7 of 18 time he alongwith father of accused Salman went to Rajasthan and brought back his daughter to Delhi. When his daughter gone missing second time, he lodged FIR in this respect but he has not brought the copy of the same. Thereafter she again gone missing after lodging FIR. When his daughter was missing last time since then he finished all relations with her. He admitted that his daughter accompanied with accused Salman on her own will every time. As per the case of the prosecution the prosecutrix had eloped with accused on 20.03.13. But prosecutrix did not state that accused had taken her forcibly after enticing or alluring her for getting married with him. On contrary, she herself stated that she accompanied accused on her own free will and this aspect has also been admitted by her father PW2. The cross examination of PW2 Shyam Lal who is the father of the prosecution clearly indicate that the prosecutrix had eloped with accused twice before lodging of present case FIR and once they were brought by PW2 and father of accused from Rajasthan. Therefore it is manifest that the present prosecutrix was in deep love with accused Salman. In consideration of the statements of PW3 Arti and PW2 Shyam Lal no substantive evidence has come against the accused that he had taken away the prosecutrix forcibly against her will with intent to marry her.
State Vs. Salman FIR no. 134/13 Page No.8 of 18
20. 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, complainant has stated the age of his daughter as 17 years. This age has been mentioned in all other documents. The prosecutrix herself has also stated her age as 17 years before the Ld. MM at the time of recording of her statement u/s 164 Cr.PC. She has also stated that she will be 18 years of age on 11.8.13. In her statement recorded before the court, she has stated her date of birth as 11.08.1995. PW4 Murari Jha, TGT, Sarvodaya Vidalya no.3 Sec.7 RK Puram, New Delhi has also stated that the date of birth mentioned in school record is 11.8.95 and in cross examination he has stated that she was admitted in 6th class in their school. Certificate issued by school Principal in this respect is Ex.PW4/A. However, in cross examination he has admitted that he cannot tell the ground of her admission whether she was admitted on the basis of old result/school result card/T.C or MCD certificate. He has no MCD certificate with the record. PW2 Shyam Lal, father of the prosecutrix has also admitted in cross examination that he did not submit any date of birth certificate issued from MCD at the time of admission of his daughter. It seems that the admission of the prosecutrix must have been done on the basis of affidavit. Be that as State Vs. Salman FIR no. 134/13 Page No.9 of 18 it may, even if I consider the date of birth of the prosecutrix as 11.08.1995, she was aged about 17 years 7 months as on the date of the present case incident. The prosecutrix has stated that she accompanied the accused with her own free will. Even as per the cross examination of Pw2 (her father) she eloped twice before this case incident with accused Salman. 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.'
21. A bare perusal of the above section would show that in order to constitute kidnapping, it was necessary that there should be State Vs. Salman FIR no. 134/13 Page No.10 of 18 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 prosecutrix and her father regarding her age, her age seems to be between 17 to 18 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'.
22. 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 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 State Vs. Salman FIR no. 134/13 Page No.11 of 18 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.'
23. 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.
24. 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 learned Single Judge of this Court noticed that she had gone to Railway Station, had stood there with the appellant who also went to State Vs. Salman FIR no. 134/13 Page No.12 of 18 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.
25. 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.
26. In "Bala Saheb vs. State of Maharashtra", 1994 Criminal Law General 3044, it was found that the State Vs. Salman FIR no. 134/13 Page No.13 of 18 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.
27. 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 : '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 State Vs. Salman FIR no. 134/13 Page No.14 of 18 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.
28. 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 guardian 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 her away from the protection of her lawful guardian within the meaning of sec.361 of the Code'.
29. The present case stands on a much stronger footing because the prosecutrix PW3 Arti has clearly stated before the court State Vs. Salman FIR no. 134/13 Page No.15 of 18 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 was in love with accused and wants to live with him. PW5 Maulana Usman has solemnized the nikah of Mohd. Salman(accused) and Aarti@Zoya on 22.03.2012 and certificate in this respect is Ex.PW5/A. PW5 has also stated in cross examination that as per Muslim Shariyaat law, in case of boy the age of majority is between 1215 years and in case of girl the age of majority is between 1215 years and from when the first mensuration period starts. The version of PW3 that prosecutrix and accused have eloped twice before registration of this case FIR clearly indicate that the prosecutrix was in deep love with accused Salman.
30. 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 State Vs. Salman FIR no. 134/13 Page No.16 of 18 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'.
31. In the present case, the prosecutrix PW3 Arti was not a child of tender age who was unable to think for herself but she was on the verge of attaining majority and was capable of knowing what was bad for her. She was studying in class 10th. Therefore she was not uneducated or unsophisticated village girl. She was living in Metropolitan City, where she has probably all her life lived in a modern city and was thus far more capable of thinking for herself and acting on her own than perhaps an unlettered girl hailing from a rural area. She was very well aware as to what she was doing and she voluntarily joined the company of accused Salman. 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 deep love with accused Salman which does not amount to enticing. Accused has provided her shelter and as per statement u/s 164 Cr.PC as well as statement of State Vs. Salman FIR no. 134/13 Page No.17 of 18 PW5 Maulana Usman, nikha has been performed and they are living as husband and wife happily.
32. 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 accused Salman and he is acquitted for the commission of offence punishable u/s 363/366 IPC.
33. 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 23.01.2014 (SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE/ SPECIAL JUDGE(NDPS) NEW DELHI State Vs. Salman FIR no. 134/13 Page No.18 of 18