Delhi District Court
State vs . on 30 April, 2012
IN THE COURT OF SHRI RAJEEV BANSAL,
ASJ-03 (SOUTH DISTRICT), SAKET COURTS,
NEW DELHI.
S.C. No.130/10
FIR No.133/08
PS: Amar Colony
U/S: 366/354 IPC.
State
Vs.
Vijay Mohanty
S/o Sh. Durga Charan Mohanty
R/o C-II/103, Rajiv Park, Khanpur,
New Delhi.
Date of initial institution in the court : 06.06.2008
Date of institution in the present court : 01.11.2010
Date of Pronouncement : 30.04.2012
JUDGMENT
1. DD No.15 was recorded on 8:40 p.m on 19.04.2008 wherein it is recorded that a wireless message has been received that a boy who was going with a 7-8 years old girl has been apprehended at Sri Niwas Puri Depot. On receipt of this DD entry, HC Ved Prakash and Ct. Malkhan Singh reached at the spot where they found the public S.C. No.130/10 FIR No. 133/08 State vs. Vijay Mohanty 1 /10 gathering which were beating a person whose name after inquiry transpired as Vijay. One person Devi Dayal and his 7 years old daughter Pooja was also there. Statement of Devi Dayal was recorded.
2. In his statement, Devi Dayal stated that on 19.04.2008, at 8:00 p.m. his daughter Pooja aged 7 years had gone out of the house for playing. After sometime, when he went outside to bring his daughter back, he found her to be missing. During his search for her, somebody told him that he had seen his daughter being taken away by one person towards Okhla Mandi at around 8:30 p.m. He reached Okhla Mandi searching his daughter and when he reached near DTC-Bus Depot, he found a gathering of people there and a person was being beaten by public and near him his daughter was standing and was weeping. The name of the person who was being beaten transpired as Vijay and Pooja told his father that the said person Vijay had taken her away after enticing her when she was playing in front of her house. The public had also told him that Vijay was taking away the girl forcibly and he S.C. No.130/10 FIR No. 133/08 State vs. Vijay Mohanty 2 /10 was caught hold when the girl started crying. On this statement, FIR No. 133/08 was registered under Section 363 IPC on 19.04.2008.
3. After completion of investigation, charge-sheet under Section 363/366A/354 IPC was filed against the accused. Since the offence under Section 366A IPC is exclusively triable by the court of Sessions, the case was committed to this court for trial.
4. Vide order dated 11.02.2009, charge under Section 366/354 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
5. In order to prove its case, prosecution examined nine witnesses and out of these, three are public witnesses. The prosecutrix baby Pooja, her father Devi Dayal were examined as also one witness Anjali Bhuchar. Anjali Bhuchar stated that as per the school records where Pooja studied, date of birth of Pooja is 04.01.2001 and her date of birth is proved as Ex.PW3/B and Ex.PW3/C whereas police witnesses, who deposed in the case, proved S.C. No.130/10 FIR No. 133/08 State vs. Vijay Mohanty 3 /10 different parts of the investigation and their respective roles in the investigation. After closing of PE, statement of accused was recorded under Section 313 Cr.P.C wherein the accused stated that he was providing helping hand to baby Pooja since she was weeping but upon pressure of crowd, a false FIR has been registered against him. The defence of the accused is thus that he was only helping baby Pooja when he found her weeping. In another words, the accused has not disputed taking away of baby Pooja with him. When there is no dispute about taking away of baby Pooja by the accused, this court is only to consider as to whether such taking away of baby Pooja, who was about 7 years of age, at the time when she was taken away, amounts to kidnapping withing the meaning of Section 361 IPC or not.
6. Ld. Counsel for the accused has argued that there was no ill-intention on the part of the accused when he extended his helping hand to the prosecutrix as he was only trying to help an abandoned child on the street and as such a help on the part of the accused cannot make him S.C. No.130/10 FIR No. 133/08 State vs. Vijay Mohanty 4 /10 guilty of the offence of kidnapping under Section 363 IPC. Ld. Counsel, to buttress her arguments, relied upon a judgment of the Hon'ble Nagpur High Court reported in AIR 1956 Nagpur 74 titled as 'State vs. Kamruddin'. Ld. Counsel has stated that there are various contradictions in the prosecution story which are not corroborated by independent evidences and hence it is unsafe to punish the accused for offence under Section 363 IPC as was held by Nagpur High Court. I have perused this judgment. The Hon'ble Nagpur High Court had based its judgment on the ground that until and unless age of the prosecutrix is proved to be less than 18 years on the date of incident, one cannot be convicted for an offence under Section 363 IPC even if the evidence is that the accused had induced the girl to accompany him. Incidentally, in the present case in hand, PW-3 Anjali Bhucher has proved the age of the prosecutrix to be less than 18 years and hence judgment relied upon by the Ld. Defence counsel is of no help to her.
7. Section 361 IPC defines kidnapping from lawful S.C. No.130/10 FIR No. 133/08 State vs. Vijay Mohanty 5 /10 guardianship, which inter-alia provides that whoever takes or entices any minor female under 18 years of age, out of the keeping of the lawful guardian of such minor, without his consent, is said to kidnap such minor from lawful guardianship.
8. The offence under Section 361 IPC is punishable under Section 363 IPC. The essential ingredients of the offence of kidnapping is taking away or enticement of a girl below 18 years of age out of the keeping of the lawful guardianship without the consent of the guardian. If somebody takes away a female under 18 years of age without the consent of her guardian, the offence of kidnapping is complete. The consent of the person kidnapped or the intention of the person kidnapping is immaterial so long as the person kidnapped is a girl below 18 years of age and her taking away is without the consent of her guardian.
9. A girl, who is playing outside her house is always under the constructive guardianship of her parents and she S.C. No.130/10 FIR No. 133/08 State vs. Vijay Mohanty 6 /10 cannot be considered to be an abandoned child taking the plea that she was not accompanied by her parents and thus if anybody takes her away out of the control of her guardian, he is said to have been committed the offence of kidnapping as such taking away of the child has not been authorised by her guardian. It is only and only the consent of the guardian, which protects such taking, from the rigorous of Section 361 IPC and nothing else.
10. In the present case, PW-2 Devi Dayal, who is father of the prosecutrix baby Pooja had clearly deposed that his daughter was playing outside the house when she was taken away by somebody. Prosecutrix also testified it that when she was playing outside her house, the accused took her on his bike. Accused has himself stated in his examination under Section 313 Cr.P.C that he was only extending helping hand to baby Pooja. The DD No.15 is recorded at 8:40 p.m on 19.04.2008 which was proved by PW-7 Ct. Kajor Mal which talks about apprehension of a boy with a 7-8 years old girl at Sri Niwas Puri Depot. PW-9 ASI Om Pal Singh had proved the site-plan of the S.C. No.130/10 FIR No. 133/08 State vs. Vijay Mohanty 7 /10 spot where the accused was apprehended with the prosecutrix. As such, the prosecutrix was found in possession of the accused at Sri Niwas Puri Bus Depot and this has also not been disputed by the accused and this taking of prosecutrix by the accused was not with the consent of guardian of the prosecutrix i.e. her father. As such, the accused is guilty of the offence of kidnapping which is punishable under Section 363 IPC.
11. The question which arises for consideration is that no specific charge under Section 363 IPC has been framed against the accused in this case and only a charge under Section 366 IPC has been framed against him which makes kidnapping of a woman with an intent of forcing her to illicit intercourse punishable. Section 366 IPC, in other words, also makes kidnapping punishable, though, the purpose of such kidnapping should be the intention to force her to illicit intercourse. Kidnapping simplicitor punishable u/s 363 IPC is a minor offence as compared to Kidnapping for illicit intercourse punishable u/s 366 IPC. Section 222(2) Cr PC authorises conviction of an accused S.C. No.130/10 FIR No. 133/08 State vs. Vijay Mohanty 8 /10 for a minor offence if the same is proved although he is not charged with it. In terms of Section 222(2) Cr.P.C, the accused can thus by safely convicted for an offence of kidnapping punishable under Section 363 IPC, though, no specific charge of kidnapping was levelled against the accused.
12. So far as the offence under Section 366 IPC and Section 354 IPC are concerned, none of the witness has deposed anything in this regard. As noted earlier, an offence under Section 366 IPC requires intention or knowledge that the kidnapped woman shall be forced to illicit intercourse whereas Section 354 IPC deals with assault on a woman with intention or knowledge to outrage her modesty. The accused was apprehended from Sri Niwas Puri Bus Depot. Prosecution has not brought on record any evidence to show any knowledge or intention of the accused either to force the prosecutrix to illicit intercourse or to subject her to such an act by which her modesty could have been outraged. The evidence led before this court falls short of proving the offence either S.C. No.130/10 FIR No. 133/08 State vs. Vijay Mohanty 9 /10 under Section 366 IPC or Section 354 IPC. As such, the accused cannot be convicted for the offences under Section 366 IPC and 354 IPC, but the evidence is sufficient to convict the accused under Section 363 IPC for which he is convicted.
Announced in the open Court. (Rajeev Bansal)
Dated:30.04.2012 ASJ-3/South District
Saket Courts, New Delhi
S.C. No.130/10 FIR No. 133/08 State vs. Vijay Mohanty 10 /10