Delhi District Court
State vs Sovinda @ Sovinder/ Fir No.146/11/Ps ... on 9 December, 2013
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IN THE COURT OF SHRI SANJEEV KUMAR: ADDITIONAL SESSIONS
JUDGE01: NORTH: ROHINI:DELHI
S. C. NO:136/13.
FIR NO:146/11.
PS :BHALSWA DAIRY.
U/S. 363/366IPC.
STATE
VERSUS
SOVINDA @ SOVINDER S/O. BABU RAM
R/O. H.NO. 165, GALI NO.1, D BLOCK,
RAJIV NAGAR, BHALSWA DAIRY, DELHI.
Date of Institution:28.03.2013.
Date of Argument :02.12.2013.
Date of Decision :09.12.2013.
JUDGMENT
1. The brief facts of the prosecution case are that, on 30.08.2011 complainant Chaman Lal S/o. Khasra No.485, D Block, Gali No.5, Bhalswa Dairy, Delhi, came to the PS Bhalswa Dairy and gave his statement as DD No.21A dated 30.08.2011 that, "he has been residing with his family at the said address and doing the job of mason and on 22.08.2011 he alongwith his son have gone for their work and at his house his wife and his daughter/prosecutrix B (real name withheld and hereinafter referred to as B) and when at 7pm they returned back at his house, his wife had told to him that, in the evening she had gone to purchase vegetable from the market after leaving STATE VS SOVINDA @ SOVINDER/ FIR NO.146/11/PS BHALASWA DAIRY, U/S. 363/366 IPC page 1 of page 15 -:2:- behind her daughter B at home and when she returned back to her house she found that the house was locked and her daughter B was not found at the home. She opened the lock of the house and checked the articles in house and found that, gold ear rings, original documents of the plot, caste certificate, Janam Patri, papers of gas, papers of NDPL, 1 ¼ kg silver, cash of Rs.50,000/ and ATM Card were found disappear. He further raised his suspicion that, her daughter was enticed away by one Sovinda @ Sovinder. Then complainant had searched the prosecutrix B but all in vain and prayed that, legal action be taken against suspect".
Thereafter duty officer on the basis of said complaint had registered the case u/s. 363 IPC and handed over the investigations to ASI Nag Singh. Thereafter IO had flashed WT message to all SSP's and DCP's in India and all SHO's in Delhi and details of prosecutrix was also uploaded on ZIPNET and hue and cry notice was also sent to NCRB, CBI, Doordarshan, Newspaper and also a reward application was moved. Besides this efforts were made to search prosecutrix and accused but all in vain. On 18.07.12 suspicious phone number were given by complainant and call details of the said phone number were obtained and analyzed and one of the phone number i.e. 9211279412 was found on the name of accused Sovinda and its location was analyzed at Sanjay Enclave, Jahangirpuri.
On 21.07.12 SI Jagbir alongwith Ct. Manesh, Wct. Rasal STATE VS SOVINDA @ SOVINDER/ FIR NO.146/11/PS BHALASWA DAIRY, U/S. 363/366 IPC page 2 of page 15 -:3:- and complainant Chaman Lal reached at J Block Jahangirpuri and complainant pointed out towards a couple in J Block and told IO that girl is his daughter and the boy is accused Sovinda. Statements of the prosecutrix B got recorded u/s. 161 Cr.P.C. Accused Sovinda was arrested, his disclosure statement was recorded. Prosecutrix was medically examined at BRRM Hospital where she refused for her internal medical examination. Thereafter, prosecutrix B was produced before CWC and sent to Nari Niketan and accused Sovinda was produced before ld. MM and sent to JC.
On 23.07.12 statement of the prosecutrix B u/s. 164 Cr.P.C. got recorded and again produced before CWC where she was sent to CHGI, Nari Niketan and after completion of the investigations the chargesheet has been filed before the concerned MM through SHO for judicial verdict.
2. After compliance of provisions of Section 207 Cr. P. C, Ld. MM committed the case to the Sessions Court as the case was exclusively triable by Ld. Sessions Court and was assigned to the predecessor of this Court by the Ld. Sessions Judge.
3. Vide order dated 09.04.2013, the Charge under section 363/366 IPC was framed against accused Sovinda @ Sovinder who pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution has examined three witnesses i.e. : STATE VS SOVINDA @ SOVINDER/ FIR NO.146/11/PS BHALASWA DAIRY, U/S. 363/366 IPC page 3 of page 15 -:4:- PW1 Ms. Kamla Sharma is the school Principal of M.C. Primary School, Bhalaswa Dairy1, Delhi and proved school admission register of the prosecutrix B as Ex.PW1/A and her admission form as Ex.PW1/B. PW2 is the prosecutrix B. PW3 Chaman Lal, complainant/father of the prosecutrix B.
5. Besides this accused has also admitted following documents i.e. statement of prosecutrix u/s. 164 Cr.P.C. as Ex.PW2/B, FIR Ex.PX, Arrest memo of accused Sovinda @ Sovinder as Ex.PX1, personal search memo of accused as Ex.PX2, MLC of the prosecutrix as Ex.PX3, certificate of marriage already Ex.PW2/E and Marriage Deed/Agreement as Ex.PX4.
6. After completion of prosecution evidence, statement of accused was recorded under section 313 Cr. P. C. and all the incriminating evidence was put to him in turn accused pleaded his innocence and he stated that the prosecutrix had left her house on her own wish and married with him on out of her own free will and consent and she was major at the time of her marriage and he further stated that he and prosecutrix are living happily and blessed with a girl child.
7. Arguments were heard from Sh. A. K. Gupta, Ld. APP for the state and Sh. Gulshan Kumar, ld. Amicus Curiae for the accused.
8. Ld. Addl. PP for the State has argued that, from the STATE VS SOVINDA @ SOVINDER/ FIR NO.146/11/PS BHALASWA DAIRY, U/S. 363/366 IPC page 4 of page 15 -:5:- testimony of PW2 and PW3, it is proved that accused has enticed the prosecutrix 'B' a minor girl aged less than 16 years and took her away from the custody of her lawful guardianship of her parents and performed marriage with her. Ld. Adll. PP for the State further argued that, from the testimony of PW1, it is proved that prosecutrix was less than, 18 years of age on the day of incident. Hence, her consent is immaterial. Therefore, offence u/s. 363/366 IPC is proved against the accused beyond reasonable doubts. Therefore, accused Sovinda @ Sovinder is liable to be convicted.
9. On the other hand, the main contention of Ld.Amicus Curiae for accused is that the prosecutrix was major as she has herself admitted in her testimony that she was above 18 years of age, when she has voluntarily left her house as she had a love affair with the accused and, thereafter she had performed marriage with accused. Hence, accused had not taken or enticed the prosecutrix B, hence, prosecution has failed to prove accused had kidnapped the prosecutrix B and, therefore, accused is entitled to be acquitted.
10. The accused has been charged for kidnapping of a minor punishable u/s. 363/366 IPC which are reproduced as below:
363. Punishment for kidnapping.--Whoever kidnaps any person from 1[India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
STATE VS SOVINDA @ SOVINDER/ FIR NO.146/11/PS BHALASWA DAIRY, U/S. 363/366 IPC page 5 of page 15 -:6:-
366. Kidnapping, abducting or inducing woman to compel her marriage, etc.--Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; 1[and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid].
11. Section 361 IPC defined kidnapping, which is reproduced below:
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.
12. Hence, in kidnapping, age of the prosecutrix is very material, as her consent is immaterial if a female is below 18 years of age.
STATE VS SOVINDA @ SOVINDER/ FIR NO.146/11/PS BHALASWA DAIRY, U/S. 363/366 IPC page 6 of page 15 -:7:-
13. In order to prove the age of the prosecutrix, the prosecution has relied upon the testimony of PW1 Ms. Kamla Sharma, Principal, MC Primary School, who has proved the Admission Register of the school where prosecutrix had admitted in first class as Ex.PW1/A, the admission form of the prosecutrix which was filled at the time of taking admission as Ex.PW1/B. As per the admission register Ex.PW1/A, Prosecutrix B was admitted in the school on 27.07.2000 vide admission entry no. 3476 and her date of birth was recorded as 13.01.1995. In the admission form also Ex.PW1/B, same date of birth is mentioned.
In her crossexamination, PW1 has admitted that she has no personal knowledge, which she has brought today and generally they write date of birth of student, as mentioned by their parents and never demand birth certificate. She further stated that she cannot say whether the parents of the student did not disclose the correct date of birth of the child or not.
14. Hence, nothing much has come out in her cross examination to disbelieve her testimony, therefore, I do not find any reason to discard her testimony, therefore, I held that, prosecutrix's age as per school record is 13.01.1995.
15. As per judgment of Jarnail Singh Vs. State of Haryana, 2013 VII AD (SC) 313 it is held that the rule 12 of the Juvenile Justice (Care & Protection of Children) Rules, 2007 to determine the age will STATE VS SOVINDA @ SOVINDER/ FIR NO.146/11/PS BHALASWA DAIRY, U/S. 363/366 IPC page 7 of page 15 -:8:- be applicable in cases of victim also where victim is a child. The relevant portion of the judgment is reproduced as below:
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 afore stated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 referred herein above 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 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 STATE VS SOVINDA @ SOVINDER/ FIR NO.146/11/PS BHALASWA DAIRY, U/S. 363/366 IPC page 8 of page 15 -:9:- 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 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 STATE VS SOVINDA @ SOVINDER/ FIR NO.146/11/PS BHALASWA DAIRY, U/S. 363/366 IPC page 9 of page 15 -:10:- 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 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."
Even though, rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any STATE VS SOVINDA @ SOVINDER/ FIR NO.146/11/PS BHALASWA DAIRY, U/S. 363/366 IPC page 10 of page 15 -:11:- difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW - PW6
16. Hence, in view of the aforesaid judgment, the preference is to be given to the school record. However, I find force in the contention of ld. Counsel for the accused that where in the school record, age is mentioned without any documentary evidence, there court can look into other evidence to find out the exact age of the prosecutrix.
17. Ld. Amicus Curiae for accused has contended that, as per testimony of prosecutrix B, her date of birth in school record was 13.01.1995, but she has testified that, in her school her wrong date of birth had been given as her actual date of birth is in the year 1993 and not in the year 1995. However, I do not see any ground to accept the said evidence of the prosecutrix. As evident from her entire testimony, she appeared to be in love with the accused and even had performed marriage. Therefore, in order to save him from punishment, she could give false evidence. PW3 Chaman Lal father of the prosecutrix had proved the original date of birth of birth certificate issued by the MCD as Ex.P2 and as per the said certificate also the age of the prosecutrix is 13.01.1995. Therefore, taking into account the documentary evidence i.e. MCD certificate of her date of birth and her school STATE VS SOVINDA @ SOVINDER/ FIR NO.146/11/PS BHALASWA DAIRY, U/S. 363/366 IPC page 11 of page 15 -:12:- admission record. I held that the date of birth of the prosecutrix is 13.01.1995.
18. As per testimony of PW3 Chaman Lal father of the prosecutrix B that on 22.08.11, when he returned from his work place, he found her daughter missing and he made a complaint to the police on 30.08.2011 and police registered the FIR on on his complaint. FIR has been admitted by the accused and same is Ex.PX. Even prosecutrix B had stated in her testimony that, she had gone with the accused on 29.08.2011 and there is no cross examination on this aspect. Therefore, it is proved that prosecutrix had gone with the accused from her house on on 29.08.2011, hence, on that day her age comes to 16 years, 7month and 16 days. Thus she was less than 18 years of age on the day of incident.
19. The second ingredient of Section 361 IPC is whether accused has taken out the prosecutrix B from the custody or her lawful guardian. 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 STATE VS SOVINDA @ SOVINDER/ FIR NO.146/11/PS BHALASWA DAIRY, U/S. 363/366 IPC page 12 of page 15 -:13:- 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 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".
20. PW2 i. e. 'B' has deposed in her testimony that, she had gone with the accused as per her own will, because her parents used to beat her and harass her. She even shown sign of the beatings on her left hand. She further stated that accused was residing two/three apart from her streets and since she had married with the accused on 23.12.2011 at Yamuna Ghat Mandir, therefore, she was residing with the accused.
STATE VS SOVINDA @ SOVINDER/ FIR NO.146/11/PS BHALASWA DAIRY, U/S. 363/366 IPC page 13 of page 15 -:14:- In her cross examination by ld. Addl. PP for the State, she denied the suggestion that, she was lewed by the accused and he had taken her in order to marry with her and he had already taken a room at Wazirabad and after residing with her there some day. Accused allured her to marry and performed marriage with her. She also denied that she had taken Rs.30,000/ jewellery, horoscope papers and other articles in a bag when she had left her house with accused.
21. Thus, from her testimony, it is evident that prosecutrix had herself left the house of her parents and it is not the accused who had enticed her to leave the house of her parents. Even in her statement u/s. 164 Cr.P.C. Ex.PW2/D also she had not stated that accused in any way took or enticed her to leave the house of her parents.
22. PW3 Chaman Lal in his testimony had only stated that, on 22.4.2011 when returned to his house, he found his daughter missing and also on checking found cash of Rs.50,000/ and 1.4kg silver, one pair of ear rings, ATM Card and other papers like birth certificate were missing. Thus, even if testimony of PW3 is believed, it is evident that, prosecutrix B had left her house on her own, as her parents used to beat her.
23. Hence, in these circumstances, from the testimony of PW2 and PW3, prosecution have failed to prove any positive act of STATE VS SOVINDA @ SOVINDER/ FIR NO.146/11/PS BHALASWA DAIRY, U/S. 363/366 IPC page 14 of page 15 -:15:- the accused that he took or entice the prosecutrix B from the custody of the lawful guardianship of her parents. If prosecutrix has herself left her home without any persuasion from the accused and accused just accompanied the prosecutrix, it could not be said that he took away her from the lawful guardianship. Therefore, in these circumstances and in view of the judgment S. Vardarajan vs State of Madras (Supra) I hold that the prosecution has failed to prove that the accused committed kidnapping of 'B' and when kidnapping is not proved the offence of kidnapping of prosecutrix B for the purpose of compelling her for seducing her for illicit intercourse marriage or intercourse punishable u/s 366 IPC also goes. Hence, I acquit him for offence under section 363/366 IPC.
24. In view of the aforesaid facts and circumstances, accused Sovinda @ Sovinder 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 09.12.2013. ADDL. SESSIONS JUDGE 01
(NORTH):ROHINI:DELHI.
STATE VS SOVINDA @ SOVINDER/ FIR NO.146/11/PS BHALASWA DAIRY, U/S. 363/366 IPC page 15 of page 15