Delhi District Court
State vs Aashid Sc No.98/13//Fir ... on 22 October, 2013
1
IN THE COURT OF SHRI SANJEEV KUMAR: ADDITIONAL SESSIONS
JUDGE01: NORTH: ROHINI:DELHI
S. C. NO:98/13.
FIR NO:186/11.
PS : BHALASWA DAIRY.
U/S. 363/366 IPC.
STATE
VERSUS
ASHID S/O. MOHD. ASHGAR
R/O. JHUGGI NO.480, KALANDER COLONY,
BHALASWA DAIRY.
Date of Institution:30.03.2013.
Date of Argument :24.09.2013.
Date of Decision :22.10.2013.
JUDGMENT
1. The brief facts of the prosecution case are that, on 03.11.2011 complainant Chanda Devi came to PS - Bhalaswa Dairy and complaint about the kidnapping of her minor grand daughter (Dhevati) 'M' (her real name withheld) by one Akhtar S/o. Asgar. Duty officer recorded the FIR on the basis of statement of the complainant. After making entry of her statement in DD No.20A, the investigation was assigned to PSI Ravinder. PSI Ravinder got sent the wireless message of missing of prosecutrix 'M'. STATE VS AASHID SC NO.98/13//FIR NO.186/11//U/S.363/366 IPC//PSBHALASWA DAIRY PAGE 1 OF 14 2 On 04.07.2012, the investigations of this case was assigned to SI Jagbir, who recovered the prosecutrix 'M' from Kallander Colony, Bhalaswa Dairy on 24.09.2012 and interrogated the prosecutrix, who told that she had performed marriage with accused Aashid according to the Muslim Rites and Ceremonies. He added Section 363 IPC. He got prosecutrix medically examined. Prosecutrix 'M' has refused her for internal medical examination.
He produced the prosecutrix before the Magistrate and Magistrate recorded her statement u/s. 164 Cr.P.C.
On 06.10.2012, accused Aashid was arrested and he was released on bail, as he was granted anticipatory bail. IO collected the age proof of the prosecutrix 'M', as per which prosecutrix was aged about 18 years of age and final after investigation, IO has filed the chargesheet u/s. 363/366 IPC.
2. After compliance of the provisions of Section 207 Code of Criminal Procedure, Ld. MM committed the case to the Court of Sessions. Thereafter, it was assigned to this court.
3. Vide order dated 17.04.2013, charges for offence u/s.
363/366 IPC framed against accused, to which accused pleaded not guilty and claimed trial.
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4. In order to proved its case, prosecution examined prosecutrix M as PW1 and her mother Smt. Chanda Devi as PW2 and Ravi Shanka Incharge Admission JJ Colony School Bhalaswa Dairy as PW3. Besides this accused has admitted FIR as Ex.PX, Statement of prosecutrix u/s. 164 Cr.P.C. as Ex.PW1/C, DD No.20 as Ex.PY1, MLC of the prosecutrix as Ex.PY2 and his arrest memo as Ex.PY3.
5. Statement of accused u/s. 313 Cr.P.C. was recorded in which all the incriminating evidence put to accused and he pleaded his innocence and did not prefer to lead any evidence in his defence.
6. I have heard arguments from Shri A.K. Gupta, ld.
Addl. PP for the State and Shri S.K. Verma, ld. Counsel for the accused and also gone through the record very carefully.
7. It is contended by ld. Addl. PP for the State that accused had enticed the prosecutrix 'M' a girl less than 18 years of age from the lawful guardianship of her grand mother i.e. PW2 Chanda Devi.
Kidnapping has been defined in Section 361 IPC, which is reproduced as under : STATE VS AASHID SC NO.98/13//FIR NO.186/11//U/S.363/366 IPC//PSBHALASWA DAIRY PAGE 3 OF 14 4
361. Kidnapping from lawful guardianship.-- Whoever takes or entices any minor under 1[sixteen] years of age if a male, or under 2[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.
8. Hence, In a case of kidnapping where prosecutrix is less than 18 years her consent became immaterial, if prosecution is able to prove that victim was taken or enticed by accused without the consent of her lawful guardianship.
9. In order to prove her age, prosecution examined Ravi Shukla, Incharge (Admission), J.J. Colony School, Bhalaswa Dairy and she has proved the admission and withdrawal registered of the said school. He has produced the original register and as per the said registered one girl namely Madhu D/o. Ashok Kumar and st Chanda was admitted in the school at serial no.911 in 1 class on 16.7.2002 and as per school record her date of birth is 15.05.1996. He proved the school record /admission record as Ex.PW3/A. He also deposed that an application form filed by her father Ex.PW3/B and affidavit given by her father as Ex.PW3/C. In his cross STATE VS AASHID SC NO.98/13//FIR NO.186/11//U/S.363/366 IPC//PSBHALASWA DAIRY PAGE 4 OF 14 5 examination witness had admitted that no birth certificate was produced by the father of the prosecutrix. He further deposed that after mentioning the date of birth whatever told by the parents if no birth certificate is available. He further deposed that minimum age of st the admission in the 1 class in school is about five years. Since no suggestion has been given by the accused that school admission record of the prosecutrix containing her date of birth as forged and fabricated, therefore, there is no ground to disbelieve the genuineness of the admission of record Ex.PW3/A to Ex.PW3/C. Hence, it is proved that as per the school record prosecutrix's date of birth was 24.5.1996. She had gone with the accused on 23.10.2011. Hence, on the day when she was left her house she was aged 15 years, 4 months and 19 days.
10. Ld. Counsel for the accused has further argued that in her cross examination prosecutrix had produced her Adhaar Card Ex.PW1/A as the proof of her date of birth in which her year of birth is mentioned as 1993. Hence, prosecutrix was above 18 years of aged on the day of incident, when prosecutrix went with accused. But in my view Adhaar Card is not valid proof of date of birth of a person.
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11. As per judgment passed by Hon'ble Supreme Court in Jarnail Singh vs State of Haryana 2013 VII AD (S.C.) 313, it is held that:
20. On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 referred hereinabove read as under:
"12. Procedure to be followed in determination of age.? (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in Rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.
(2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of STATE VS AASHID SC NO.98/13//FIR NO.186/11//U/S.363/366 IPC//PSBHALASWA DAIRY PAGE 6 OF 14 7 physical appearance or documents, if available, and send him to the observation home or in jail.
(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining
(a) (i) The matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee for the STATE VS AASHID SC NO.98/13//FIR NO.186/11//U/S.363/366 IPC//PSBHALASWA DAIRY PAGE 7 OF 14 8 reasons to be recorded by them, may, if considered necessary, given benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.
and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a) (i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regard such child or the juvenile in conflict with law.
(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any or the conclusive proof specified in subrule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and and a copy of the order shall be given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of Section 7A, section 64 of the Act and STATE VS AASHID SC NO.98/13//FIR NO.186/11//U/S.363/366 IPC//PSBHALASWA DAIRY PAGE 8 OF 14 9 these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in subrule (3) of this rule.
(6) The provisions contained in this rule shall also apply to those dispose off cases, where the status of juvenility has not been determined in accordance with the provisions contained in subrule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of juvenile in conflict with law."
12. Hence, as per rule 12 of the Juvenile Justice (Care and Protection of Children) Rules 2007 after Matric certificate preference is to be given to the school record of first class is to be given preference over any other document. However, in my view, when the date of birth in the school record has been mentioned without any basis and it appear to the court that age in the first class are wrongly mentioned, therefore, court cannot look into other evidence to determine age of the individual. PW1 in her testimony had deposed that she has studied upto fifth class in MCD School, Bhalaswa Dairy. She does not know her date of birth but her date of STATE VS AASHID SC NO.98/13//FIR NO.186/11//U/S.363/366 IPC//PSBHALASWA DAIRY PAGE 9 OF 14 10 birth was recorded by her maternal aunty falsely. She had stated herself to be of 20 years of age while giving her particulars at the time of recording her testimony. But since she had herself did not give any proof of age, her testimony that she is 20 years of age cannot be believed.
13. PW2 Chanda Devi, grand mother of the prosecutrix had stated that prosecutrix was residing with her since childhood. In her cross examination, she had stated that she does not know when her grand daughter was born. However, she had stated that her daughter was married twenty years ago and prosecutrix is the eldest daughter of her daughter Mamta as she was born after one year of her marriage. She further stated that at the time of admission of the prosecutrix she did not give any documents of date of birth and only given an affidavit. Since PW2 Chanda Devi's testimony was recorded on 23.08.2013 and she stated that marriage of mother of the prosecutrix was performed twenty years ago and prosecutrix was born after one year of marriage, which means on 23.08.2013 prosecutrix should be around 19 years of age. As per FIR Ex.PX, which was recorded on the statement of PW2, prosecutrix has gone with the accused on 25.10.2011, which means on 25.10.2011 STATE VS AASHID SC NO.98/13//FIR NO.186/11//U/S.363/366 IPC//PSBHALASWA DAIRY PAGE 10 OF 14 11 prosecutrix was around 17 years of age. Hence, even as per testimony of PW2, she was less than 18 years of age on the day of incident, when she had gone with the accused even as per testimony of PW2. Therefore, I held that prosecutrix was less than 18 years of age when she went with the accused, her consent is immaterial.
14. The second ingredient of Section 361 IPC is whether accused has taken her from the lawful guardianship. There is a difference between taking and allowing a minor to accompanied with him. In case S. Vardarajan vs State of Madras 1965 AIR 942, 1965 SCR (1) 243, Hon'ble Supreme Court while dealing with almost similar kind of situation has held that:
"In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian. It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some STATE VS AASHID SC NO.98/13//FIR NO.186/11//U/S.363/366 IPC//PSBHALASWA DAIRY PAGE 11 OF 14 12 earlier stage solicited or persuaded the minor to do so. In our, opinion if evidence is to establish one of those thing is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardian's house by taking her alongwith him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfillment of the intention of the girl. That part, in our opinion, falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to "taking".
15. PW1 in her examination in chief had not deposed that, accused had enticed her or she had gone with the accused. Therefore, she was declared hostile by the prosecution and in her cross examination she denied the suggestion that accused was roaming around her house and used to talk her and he enticed her for marriage. But she had admitted that accused had married with her according to the Muslim Rites and Rituals as per her own will. Hence, from her testimony despite being declared hostile, it is proved that she had performed marriage with the accused and left STATE VS AASHID SC NO.98/13//FIR NO.186/11//U/S.363/366 IPC//PSBHALASWA DAIRY PAGE 12 OF 14 13 house of her MamaMami/grand parents PW2 Chanda Devi. Without taking their prior consent. In her statement recorded u/s. 164 Cr.P.C. she had stated that she was residing with her Mamamami and she went with the accused and performed marriage on Pichli Chhoti Diwali and since then she is residing in her matrimonial house. She had stated that, she went from her house voluntarily. Hence, she had stated that accused did any positive act to take her out of the lawful guardianship of her grand mother or maternal uncle. Rather she has specifically denied in her cross examination done by ld. Addl. PP for the State that accused used to roam around her house and used to take with him and entice him for marriage. In her statement u/s. 164 Cr.P.C. also she stated that she went with accused Aashid, but has not stated that accused had asked her to live her in the house of PW2. She stated that, she went with him with her consent.
16. Though, PW2 Chanda Devi has stated that accused Aashid was residing in front of her house and had enticed her grand daughter "M" and taken her away on the day of Choti Diwali with her permission, but she had stated how or in what manner accused has enticed her merely saying that he enticed her is not sufficient but she STATE VS AASHID SC NO.98/13//FIR NO.186/11//U/S.363/366 IPC//PSBHALASWA DAIRY PAGE 13 OF 14 14 has to explain the positive act of the accused. Hence, in my view prosecution has failed to prove that accused had taken the prosecutrix from the custody of lawful guardian. Hence, I held that prosecution has failed to prove that accused has kidnapped the prosecutrix.
17. In view of the aforesaid facts and circumstances, accused Aashid stands acquitted for offence in which he has been charged. However, he is directed to furnish his personal bond in the sum of Rs.10,000/ with one surety of like amount in compliance of provisions of Section 437A Cr.P.C. Till then his previous personal bond and surety bond extended.
File be consigned to record room.
ANNOUNCED IN OPEN COURT (SANJEEV KUMAR) ON 22.10.2013. ADDL. SESSIONS JUDGE 01 (NORTH) ROHINI:DELHI.
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