Delhi District Court
State vs . Vikas Kumar Paswan S/O Dinesh Paswan, ... on 24 February, 2010
1
IN THE COURT OF Ms. SUNITA GUPTA : DISTRICT JUDGEVII/NORTHEASTCUM
ADDITIONAL SESSIONS JUDGE : KARKARDOOMA COURTS : DELHI :
S.C. No. 93/09
State Vs. Vikas Kumar Paswan S/o Dinesh Paswan, R/o Village
Koyala City, PS Mokama, Post Mokama, District
Patna, Bihar.
FIR No. 119/09
PS Seemapuri
U/s 363/366 IPC.
J U D G E M E N T : On 25/26th of March, 2009 Lovelorn Malti (name changed) went with Vikas Kumar Paswan to Bihar. When she could not get requital for her love, she got married with Vikas in a temple. When she did not return home, her mother Gulabi Devi lodged a report with police, wherein Gulabi Devi raised an accusing finger against accused Vikas alleging that he had taken away her daughter with him, as he was on visiting terms with Vinod, his brotherinlaw (jeeja), who used to reside in her neighbourhood. Statement of Gulabi Devi was recorded. A case under section 363 IPC was registered. During the course of investigation accused and prosecutrix were arrested. Statement of prosecutrix was got recorded u/s 164 Cr.P.C. Both accused and prosecutrix were also got medically examined. Investigation culminated into a chargesheet against accused Vikas.
2. Charge for offences punishable under sections 363 and 366 IPC was framed against the accused, to which charge he pleaded not guilty and claimed trial.
3. To substantiate the charge, prosecution has examined Jitender (PW1), Jagbir Singh, Constable (PW2), Dr. Bhawna Agarwal (PW3), Ramesh Chand ASI (PW4), Rinku Devi (PW5), Smt. Gulabi (PW6), Sushila, Constable (PW7), Vijay Laxmi (PW8), Ms. Shuchi Shahmiri, MM (PW9), Malika (PW10), Surender Kumar SI (PW11) and Dr. P.K. Phukan (PW12).
4. In order to afford an opportunity to explain circumstances appearing in 2 evidence against the accused, he was examined under section 313 Cr.P.C. He admitted that Mallika, daughter of Smt. Gulabi Devi and sister of Jitender, was residing at H.No. E44/D209, New Seemapuri, Dilshad Colony, Delhi. He further admitted that his sister and brotherinlaw, namely, Rinku Devi and Vinod were also residing in the same locality, adjacent to house of Malti, and he was living with them. He also accepted the fact that he was already married. He admitted most of the circumstances presented to him, except a few, viz registration of case against him, date of birth of Malti etc. He projected that prosecutrix Malti belongs to Bihar and she insisted him to accompany her to Bihar as she wanted to see her parents, who were already residing there, as her father was seriously ill and later on, he expired. He claims himself to be innocent and alleged his false implication in the case. However, he did not lead any evidence in his defence.
5. Arguments were heard at the bar. Sh. Subhash Chauhan, ld. Prosecutor, presented facts on behalf of the State. Sh. R.L. Anand, Advocate, had advanced arguments on behalf of the defence.
6. It was submitted by ld. Counsel for the accused that statement of prosecutrix was recorded by ld. MM after ascertaining her voluntary nature of statement and in this statement prosecutrix stated that she had gone with the accused of her own will and consent and remained with him and having love affairs with him from last three or four years. As regards her age is concerned, he referred to testimony of her brother and mother, for submitting that if age of prosecutrix is calculated as per their version, then her age comes to 18 years. As regards the discharge card of hospital is concerned, it was submitted that prosecutrix has three sisters, besides herself, and in this discharge card name of prosecutrix is not mentioned. As such it is not established beyond reasonable doubt that this discharge card pertains to prosecutrix or not. Under 3 these circumstances, it was submitted that prosecutrix is major and was consenting party in eloping with the accused. Therefore, accused is entitled to be acquitted as no case is made out against him.
7. On the other hand, it was submitted by ld. Prosecutor that as per hospital record, date of birth of prosecutrix is 11.11.92. That being so, on the date of incident she was 16 years, five months and 14 days old. Thereafter, he referred to testimony of prosecutrix, wherein she deposed that accused had enticed her and had taken her to Bihar on the pretext of marrying her. As such, it was submitted that essential ingredients of section 363 are fully made out in the case. As regard offence under section 366 IPC is concerned, it was fairly conceded that since prosecutrix herself did not undergo medical examination, and according to her nothing wrong was done to her by the accused, as such offence u/s 366 IPC is not proved in the case.
8. I have given my considerable thoughts to respective submissions of the parties and carefully perused the record.
9. Prosecution machinery in the instant case was swung into action on lodging of complaint by Smt. Gulabi Devi on 02.04.09, regarding missing of her daughter Malti, aged about 16 and half years on 25.03.09. She raised her suspicion upon Vikas Paswan, brotherinlaw of Vinod, who lives in her neighbourhood and used to occasionally visits him. On the basis of this complaint, a case under section 363 IPC was registered. On 03.04.09, prosecutrix came to police station along with accused Vikas. Her statement under section 161 Cr.P.C was recorded, wherein she stated that she was enticed and was taken by the accused to village Masodi, Distt. Patna, Bihar, where he got married with her in a temple. Since prosecutrix was in love with accused as such offence u/s 366 IPC was got added. During the course of investigation, both accused as well as prosecutrix were sent to GTB Hospital.
4 Prosecutrix refused to undergo medical examination. Thereafter, she was produced before Ms. Shuchi Shamiri (PW9), who recorded her statement Ex.PW9/A, wherein prosecutrix stated that she was having love affairs with the accused for last three or four years. She had called him and had gone with him. She got married with him in a temple. She wants that her parents should not harass him. In case her parents are not agreeable with marriage, then she along with accused will go to Bihar. She had gone with accused to Bihar on 25/26th and remained there with her motherinlaw. During this period, her husband did not do any wrong with her. Thereafter, her sisterinlaw rang her and called her to Delhi. Thereafter, she went to police station. She wanted to live with her husband. After completion of investigation, challan was submitted.
10. PW1 Jitender, brother of prosecutrix Malti, has testified that brotherinlaw of Vinod, namely, Vikas Pawan used to come at the house of Vinod and during that period there might be some relations between his sister and accused Vikas. On 25.03.09, Vikas had taken his sister Malti with him to his village in Bihar. Wife of Vinod brought his sister and Vikas to his house from Bihar.
11. Jagbir Singh, Constable (PW2) got medical examination of accused done at GTB Hospital. Dr. Bhawna Agarwal (PW3) prepared MLC of prosecutrix Malti and proved the same as Ex.PW3/A. She further deposed that the patient gave history of "running away with a boy and stayed away from home for 10 days" and refused to undergo any medical examination. Ramesh Chand ASI (PW4) was working as duty officer at PS Seemapuri on 02.04.09. He recorded formal FIR and proved the copy of same as Ex.PW4/A.
12. PW5 Rinku Devi is the sister of accused and she has also deposed that she brought her brother Vikas and prosecutrix Malti from Patna to Delhi and 5 produced both of them before police officials. She had brought them after four days of their leaving.
13. PW6 Smt. Gulabi Devi is the mother of prosecutrix Malti. She has testified that Malti was aged about 16 and half years, when she went away from her house. She searched for her and raised suspicion over Vikas Paswan, brotherinlaw of Vinod Paswan. She inquired in the neighbourhood and also from Vinod, who stated that his brotherinlaw, namely, Vikas might have taken her daughter Malti. Later on Vikas and her daughter came together and were taken to police station. Vinod Paswan asked her to get her daughter married with Vikas, but she was not agreeable with this proposal as Vikas was already married. Sushila, Constable (PW7) took Malti to GTB Hospital for her medical examination, where she refused to undergo medical examination. Smt. Vijay Laxmi (PW8) deposed that as per record, Malti was admitted in their school by Smt. Gulabi Devi. She proved admission form of Malti as Ex.PW8/A, besides photocopy of discharge card of Daya Nand Hospital as Ex.PW8/B, photocopy of admission and withdrawal register as Ex.PW8/C and certificate issued by her as Ex.PW8/D. Ms. Shuchi Shahmiri, ld. MM (PW9) recorded statement of prosecutrix Malti u/s 164 Cr.PC and proved the same as Ex.PW9/A. She also appended her certificate regarding correctness of proceedings and proved the same as Ex.PW9/B. Prosecutrix PW10 herself has deposed that in the year, 2009, accused had taken her to Bihar on the pretext of marrying her. However, he did nothing wrong with her in Bihar. After three days, sister of Vikas came in Bihar and brought her and Vikas to Delhi. Statement of Malti was recorded by ld. Magistrate, which is Ex.PW9/A. Since this witness did not support the case of prosecution in all material particulars, she was crossexamined by the ld. Prosecutor and in crossexamination, she admitted that accused Vikas allured and enticed her and had taken her to 6 Bihar and used to say that he wanted to marry her. Accused put vermilion in parting of her hair in a room in Bihar and stated that her marriage has been solemnized with her. He secretly eloped with her and did not take permission of her mother before taking her to Bihar. In crossexamination by ld. Defence counsel, she admitted that when her statement was recorded by ld. MM, she stated before her that she is not under any kind of pressure or coercion and that she was giving statement voluntarily with her consent and free will. She admitted having stated before the ld. MM that her parents should not harass accused and she wanted to get him released on bail. She admitted that the joint photograph appended on affidavit is of her and that of accused Vikas, and the same bears her signatures and thumb impression on Ex.PW10/B at point ' A'.
14. Surender Kumar SI (PW11) conducted investigation of the case. He concluded investigation and got the accused challaned. Dr. P.K. Phukan (PW12) proved MLC of accused Vikas as Ex.PW12/A, which was prepared by Dr. Madhab Kalita.
15. Accused in his statement recorded u/s 313 Cr.P.C has admitted the fact that Rinku Devi and Vinod, sister and brotherinlaw respectively of the accused were residing in the same locality, where prosecutrix along with her parents were residing. He also admitted that he had gone with prosecutrix to Bihar. However, according to him, prosecutrix herself had called him from Bihar and expressed her desire to meet her parents, who were residing in Bihar. She herself accompanied him to Bihar. Although, he admitted that he was already married, however stated that divorce has taken place. According to him, prosecutrix has given her age as 21 years. Therefore, they contacted court marriage. Thereafter, he admitted that he and prosecutrix were produced in the police station by his sister Rinku Devi, after she brought them 7 from Bihar. He pleaded his innocence and claimed that prosecutrix herself had accompanied him to Bihar and in fact it was at her instance that he had taken her to Bihar.
16. From the aforesaid evidence, it transpired that prosecutrix in her deposition before this Court has taken a plea that she was allured and was taken by the accused on the pretext of marrying her. However, this plea does not inspire confidence, inasmuch as, at the very initial juncture when she was produced by sister of the accused in police station, she was produced before ld. MM and as per testimony of Ms. Shuchi Shamiri, she put preliminary questions to prosecutrix and after ascertaining her voluntary nature of statement, she recorded her statement Ex.PW9/A. Prosecutrix herself has admitted that she stated before ld. MM that she was making statement voluntarily with her own consent and sweet will and that she had gone with accusd. She also admitted her signatures and thumb impression on the affidavit Ex.PW10/DA, which is an affidavit of Court marriage with accused. Before the doctor also, she not only refused to undergo medical examination, but also gave history of eloping with accused of her own will. Now it has come in her testimony that she had got married with one Anil, one month prior to the deposition before the Court. It seems that due to this reason, now she is taking a plea that she was enticed by the accused to accompany him on the pretext of getting her married. Rather, it has come in the testimony of sister of accused that not only on 25.03.09, even three years prior, prosecutrix had gone with accused and lived together for few days. At that time, report was lodged by parents of prosecutrix. However, the matter was compromised at that time. Aforesaid discussion clearly goes to show that it is a clear case where consent of prosecutrix in going with accused Vikas is writ large, inasmuch as, as per her statement recorded u/s 164 Cr.P.C., she was in love 8 with him and had gone with him and then married with him.
17. In this back drop, question for consideration comes as to whether these facts answer ingredients of kidnapping as defined in section 361 IPC. This section reads as under : "Whoever takes or entices any minor under 16 years of age, if a male, or under 18 years of age, if female, or any person of unsound mind, out of the keeping of the lawful guardianship of such minor or person of unsound mind, without the consent of such guardian, is said to have kidnap such minor or person from lawful guardianship."
18. In order to attract section 361 IPC, it is incumbent upon the prosecution to prove following ingredients : (1) There must be taking or inducement of a minor or a person of unsound mind.
(2) Minor must be under 16 years of age, if a male or under 18 years of age, if a female.
(3) Taking or inducement must be out of keeping of lawful guardianship of minor or person of unsound mind, and (4) Taking or inducement must be without consent of guardian of minor or person of unsound mind.
19. The word 'takes' or 'e ntices' used in section 361 IPC are quite significant.
The word 't akes' has been defined in the dictionary meaning 'caus e to come or go with one, or to get into possession'.
When the accused takes the minor with him whether she is willing or not, the act of taking is complete. The word "entices" involves an idea of inducement by exciting hope or desire in the other. Similarly, the word "induces" used in section 362 IPC is quite significant. Case would fall within the mischief of section 363 IPC only if the prosecution is able to prove that it was either taking or enticing the minor or 9 there had been inducement. The word "induce" means to prevail on, to bring about, to persuade; as defined in Law Lexicon by P. Ramanathan Aiyar.
20. Matter came up for consideration before hon' ble Supreme Court in AIR 1965 SC 942, S. Vardarajan vs. State of Madras, while dealing with the case of a minor girl, who was on the verge of attaining majority and who herself telephoned the accused to meet her and finding him waiting with his car, got into that car of her own, it was held that the accused was not guilty of taking out the girl out of the lawful guardianship of her father as there was no suggestion that the act was done by force or anything like that on the part of the accused. This judgement was relied upon in Bhagwan Singh & Ors. V. State of Anr., 2006 (3) JCC 2050 and following portion from the judgement of S. Varadarajan (supra ) was quoted :
"But when the girl (who though a minor had attained the age of discretion and is on the verge of attaining majority and is a senior college student) went from the house of the relative of father where she is kept, herself telephones the accused to meet her at a certain place, and goes there to meet him and finding him waiting with his car gets into that car of her own accord, and the accused takes her to various places and ultimately to the SubRegistrar's office where they get an agreement to marry registered, and there is no suggestion that this was done by force or blandishment or anything like that on the part of the accused but it is clear from the evidence that the insistence of marriage came from her side, the accused by complying with her wishes can by no stretch of imagination be said to have 'taken ' her out of the keeping of her lawful guardianship, that is, the father.
The fact of her accompanying the accused all along is quite consistent with her own desire to be the wife of the accused in which the desire of accompanying him wherever he went is of course implicit. Under these 10 circumstances, no inference can be drawn that the accused is guilty of taking away the girl out of the keeping of her father. She has willingly accompanied him and the law does not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him."
These authorities were relied upon subsequently in Ruksana Vs. Govt. of NCT of Delhi, 2007 (3) RCR (Criminal) 542.
21. Hon' ble High Court had relied upon Vivek Kumar @ Sanju and another v. The State and another in Crl. M.C. No. 307374/2006 decided on 23.02.07, wherein it was observed as under : "There is no law which prohibits a girl under 18 years from falling in love with someone else. Neither falling in love with somebody is an offence under IPC or any other penal law. Desiring to marry her love is also not an offence. A young girl, who is in love has two courses available to her -- one is that she should marry with the consent of her parents after obtaining the consent of her parents. If her parents do not agree to persuade them or to wait for attaining the age of majority and then exercise her right as a major to mary the person of her own choice. However, this is possible only when the house of her parents where she is living has congenial atmosphere and she is allowed to live in peace in that house and wait for attaining age of majority. This might have been the reason in the mind of petitioner No.2 when she told her father that she was in love and wanted to marry Sanju, but the response of father when daughter confided in him, created the fear in the mind of petitioner No.2. Her father slapped her and told that her action would malign the religion and bring danger to the religion. He even threatened to kill her and marry her off to some rich person. When once a such a threat is given to a girl around 17 years of age, who is in love, under such circumstances she has a right to protect her person and feeling against such onslaught of her relatives even if 11 the onslaught is from her own parents. Right to life and liberty as guaranteed by the Constitution is equally available to minors. A father has no right to forcibly marry off his daughter, who is below 18 years against her wishes. Neither he has a right to kill her, because she intends to marry out of her religion. If a girl around 17 years of age runs away from her parents house to save herself from the onslaught of her father or relatives and joins her lover or runs away with him, it is no offence either on the part of the girl or on the part of the boy with whom she ran away and married."
22. Manish Singh vs. State, 2006 (I) RCR (Cri.) 653 was also a case, where FIR was registered under section 363 IPC, PS Sarojni Nagar. Direction was given to produce the prosecutrix. When she appeared in the Court, she stated that she had solemnized marriage with accused of her own accord in a temple of Delhi. They cohabit together, stayed at different places in Bihar and that she was neither forced or taken away. She had married with accused of her own choice. She claimed that she was 19 years old. However, her father claimed that she was 14 years old, as per school leaving certificate. In view of the statement of prosecutrix, hon' ble High Court observed that continuous criminal proceedings under section 363 IPC would be an exercise in futility. Besides, it would also be detrimental to matrimonial life of the couple and of the infant. Prosecutrix being around 17 yeas of age, on the verge of majority, having reached an age of discretion, had accompanied accused of her own volition, without any kind of enticing or inducement or force from anyone. There was, thus, no taking away or enticing away of minor out of keeping of lawful guardian. Essential ingredients of offence of kidnapping are missing. Relying upon S. Vardarajan (supra), FIR was quashed.
23. Present case squarely falls within the four corners of these authoritative pronouncements, inasmuch as, it has come on record that prosecutrix had 12 gone with the accused, as she was in love with him. She went with him to Bihar and stayed with him. Her testimony that she was enticed or allured by accused to get her married does not inspire any confidence in the facts and circumstances of the case. Under these circumstances, it cannot be said that accused was guilty of taking away prosecutrix out of keeping of her parents.
24. Keeping in view this finding that consent of the prosecutrix is writ large in the facts and circumstances of the case, age of the prosecutrix at the time of incident assumes significance. So question which arises for consideration is as to what was the age of prosecutrix on the date of incident. PW1 Jitender, brother of prosecutrix, produced school certificate of his sister bearing her date of birth, in which her date of birth was mentioned as 11.11.92. In cross examination, he deposed that they are six brothers and sisters. Sumitra is eldest one. She is aged about 34/35 years. He is next to Sumitra, about three or four years younger to her. Alka is younger to him by four years. Vicky is younger to Alka about two or three years. Prosecutrix is younger to Vinod about three or four years. If, age of prosecutrix is calculated as per this testimony, it comes to 19 to 20 years. Mother of prosecutrix, Smt. Gulabi Devi, deposed that prosecutrix was 16 and half years, when she was found missing from house. In crossexamination, she could not tell the exact date of birth of prosecutrix. However, according to her, her daughter and Alka was born in the year 1984, when Smt. Indra Gandhi, then Prime Minister, was assassinated and prosecutrix is 12 years younger than Alka. If this age is taken, the age of prosecutrix comes to 13 years at the time of incident. However, she gave another version by stating that she got her daughter admitted in school in first standard. At that time, she was approximately 7 years old. She studied upto 4t standard and about 7 years ago, she left the school. If her age is calculated from this point of view, then her age comes to 18 years. Prosecutrix herself 13 has given her age as 16 years. PW8 Smt. Vijay Laxmi, Principal of MC Primary School, Dilshad Colony, brought admission register pertaining to prosecutrix and deposed that as per record, she was admitted in the school by Smt. Gulabi Devi. As per record, date of birth of prosecutrix was 11.11.92. She placed on record admission form Ex.PW8/A running into three pages. Photocopy of discharge card of Dayanand Hospital is Ex.PW8/B. Photocopy of admission and withdrawal register maintained by the school is Ex.PW8/C and the certificate issued by her is Ex.PW8/D. Keeping in view the fact that witness also produced the discharge card of the hospital, which was annexed with admission form along with affidavit of father of prosecutrix, at the time of getting her admitted in the school, the best piece of evidence is the date mentioned in discharge card of hospital, which is 11.11.92. The submission of ld. Counsel for the accused that it has not established beyond reasonable doubt that this discharge card pertains to prosecutrix, inasmuch as, prosecutrix had other sisters also and in this discharge card name of prosecutrix is not mentioned, is without any substance. It is a matter of common knowledge that at the time of birth of a child, generally name of the child is not mentioned. Even no suggestion was given in crossexamination that this discharge card does not pertain to the prosecutrix. That being so, since this discharge card was annexed with documents filed in school, at the time of admission, it has to be taken that same pertains to prosecutrix and therefore as per this document her date of birth is 11.11.92. That being so, prosecutrix was 16 years, 5 months and 14 days old at the time of incident.
25. Now question for consideration comes whether in the facts and circumstances of the case accused can still be held guilty of offence under section 363 IPC. In Mahabir Singh Vs. State, (55) 1994 DLT 428, it had come on record that prosecutrix had crossed mark of sixteen years and since 14 she was all along a willing party, therefore despite the fact that prosecutrix was less than 18 years of age, accused was not only acquitted of the charge u/s 376 IPC, but also of the charge u/s 366 IPC. Similarly, in Piara Singh Vs. State of Punjab, 1998 (3) Crimes 570, Hon' ble High Court found that prosecutrix was more than 16 years of age at the time of incident, though the case of prosecution was that she was 14 years of age at the time of incident. Despite the fact that prosecutrix was not found to be more than 18 years of age, yet accused was acquitted not only of the charge u/s 376 IPC, but also of the charge u/s 366 IPC. Hon' ble High Court in Pawan Kumar & Another vs. State (NCT of Delhi) & Others, Writ Petition (Criminal) No. 905 of 2009, wherein prosecutrix was found to be 17 and half years old, when she left the house of her father and as per her statement she got married with accused of her own will. By relying upon Shyam & Another Vs. State of Maharashtra, 1995 Cr.L.J. 3974; State of Karnataka vs. Sureshbabu, 1994 Cr.L.J. 1216 (1); Mahabir Singh vs. State, 55 (1994) DLT 428; Piara Singh vs. State of Punjab, 1998 (3) Crimes 570, and Bala Sahed vs. State of Maharashtra, 1994 Cr.L.J. 3044, questioned the FIR by holding that no offence punishable under section 363 IPC is made out.
26. In view of these authoritative pronouncements, even if prosecutrix was less than 18 years of age, keeping in view that element of taking or enticing are missing, therefore no offence u/s 363 IPC is made out.
27. Even no offence u/s 366 IPC is made out in the case, inasmuch as, as per testimony of prosecutrix herself, no wrong act was committed by the accused with her, and she herself had refused to undergo medical examination and therefore, it cannot be said that she was induced by accused with intent that she would be seduced or forced to elicit intercourse. Under these circumstances, essential ingredients of section 366 IPC are also not made out 15 in the case.
28. In view of the foregoing discussions, prosecution has miserably failed to prove its case against accused Vikas for offences punishable under section 363 and 366 IPC. Accused is accordingly acquitted of the charge. His bail bonds are discharged. File be consigned to Record Room.
Announced in the Open Court (Sunita Gupta) On this 24th day of February, 2010. District JudgeVII/NEcumASJ, Karkardooma Courts, Delhi.