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Delhi District Court

State vs . : Azim on 6 April, 2015

                                              1

          IN THE COURT OF DIG VINAY SINGH: ADDITIONAL SESSIONS
         JUDGE/SPECIAL JUDGE : NDPS(N-W) : ROHINI COURTS : DELHI

                                         In the matter of :
                                         SC No.       : 55/13
                                         FIR No.      : 01/12
                                         PS           : Ashok Vihar
                                         U/s          : 363/366 IPC
                                         State Vs. : Azim

State

Versus

Azim
S/o Sh. Aamir Ahmad
R/o Jhuggi no. A-32,
Udham Singh Park, WPIA, Delhi.

                                         Date of receipt            : 20.03.2012
                                         (Received in this court)   : 02.12.2013
                                         Date of arguments          : 06.04.2015
                                         Date of announcement       : 06.04.2015


                                     JUDGMENT

1 Sole accused was sent up for trial in this case with the allegation that the accused kidnapped minor girl Aarti @ Gillo for the purposes of coercing her to marry or that she may be forced or seduced to illicit intercourse.

2 Briefly stated, the present case was registered on 1.1.2012 at 3.10 PM on a complaint given by Smt. Phula Rani who complained that her daughter Aarti aged 15 years and a student of 9th standard in Government Girls Senior Secondary School, went missing on 30.12.2011 at about 4.00 PM from her SC No. 55/13 Dtd. 06.04.2015 Page 1 of 14 2 house. The complainant expressed suspicion against the accused stating that the accused, who was residing in nearby jhuggies, was also missing from the same time, therefore, the complainant believed that the accused kidnapped her daughter. On this complaint, present case was registered and investigation was undertaken. During investigation the prosecutrix was found in the house of Meera daughter of Lalbhai. Meera stated that the prosecutrix herself came to her house on 1.1.2012 and the prosecutrix told her that accused had enticed her away on 30.12.2011 but then he left the prosecutrix near the house of Meera, alone. Statement U/s 164 Cr.P.C of the prosecutrix was recorded during investigation. And after arrest of accused and completion of investigation, charge sheet was filed.

3 Accordingly, a charge U/s 363 and 366 of IPC was framed against the accused to which the accused pleaded not guilty and claimed trial.

4 In support of its case, prosecution examined total 14 witnesses.

4.1 The prosecutrix of the case was examined as PW6 and, mother of the prosecutrix i.e. the complainant Smt. Phula Rani is examined as PW3. Rest of the witnesses are more or less formal in nature.

4.2 PW1 Ms. Manila Verma from M.C. Primary School, Wazirpur Industrial Area proved that as per school records, the prosecutrix was admitted in first standard on 26.08.2003 and at that time her date of birth got recorded was 1.4.1997. The basis of recording the date of birth was an affidavit submitted by the mother of the child. The copy of admission form; copy of affidavit of mother of prosecutrix and; certificate issued by this witness are proved as Ex.PW1/B, C & A, respectively. The prosecutrix stayed in the school till 31.08.2008 when her transfer certificate was obtained.

4.3 PW2 HC Jagdish was the duty officer who proved registration of FIR and endorsement on rukka as Ex.PW2/A & B, respectively.

4.4 PW4 Sunil Kumar was the Ld. Magistrate who recorded statement U/s 164 Cr.P.C of the prosecutrix and proved that statement as Ex.PW4/B. 4.5 PW5 Dr. R.S. Mishra proved the MLC of prosecutrix dated 1.1.2012 as Ex.PW5/A. 4.6 PW7 Dr. Shipra examined the X-ray plates of prosecutrix and gave opinion that the estimated bone age of prosecturix was between 17 to 18 years on the date of her examination i.e. 7.1.2012. She proved her report Ex.PW7/A. 4.7 PW8 Ct. Richa simply witnessed the enquiries made from the prosecutrix by the investigating officer in the presence of one NGO official. 4.8 PW9 Meera, the relative of prosecutrix, deposed that on 1.1.2012 when she was present at her father's house at Bhalaswa Dairy, the prosecutrix came there at about 1.00 or 1.30 PM. She enquired from her as to from where the prosecutrix came, but the prosecutrix did not disclose anything. Then she informed her bua, mother of prosecutrix (PW3), about it and thereafter mother of prosecutrix along with her brother and one police official came and took the prosecutrix to the house.

This witness was declared hostile by the prosecution since as per the initial case of prosecution this witness was told by the prosecutrix that she was kidnapped by the accused and she was left near house of this witness. But in her examination in chief, the witness did not support this version.

The witness was subjected to cross examination by the Ld. Prosecutor, but in the cross examination also nothing material could be brought out against the accused.

4.9 PW10 Ct. Satender Kumar deposed that he joined investigation with SI Naval Singh and on 01.01.2012 he took the rukka for getting the FIR registered to the police station, and after getting the FIR registered he returned to the residence of prosecutrix, handed over the documents to the investigating officer and then he along with investigating officer and mother of prosecutrix went to Bhalaswa Dairy, where prosecutrix was found. The recovery memo, qua recovery of prosecutrix was prepared. Thereafter prosecutrix was got medically examined in hospital. The witness also deposed that on 3.1.2012, accused led the police team to the house of one Rajesh in Faridabad and pointed out that the accused and the prosecutrix had stayed there for a day.

4.10 PW11 SI Naval Singh was the investigating officer who deposed that PW3 came to the police station on 01.01.2012, gave her complaint on which he prepared rukka and handed over the rukka to the duty officer. After registration of the FIR, Ct. Satender brought the rukka and copy of FIR to the house of complainant and then they went to Bhalaswa Dairy and recovered the prosecutrix from the house of Meera. This witness stated that during investigation, accused Azim was apprehended on 2.1.2012 at the instance of secret informer and he pointed out to the house of Rajesh. During investigation, medical of prosecutrix was also conducted and her statement U/s 164 Cr.P.C was also recorded.

4.11 PW3 Smt. Phula mother of prosecutrix deposed that her daughter went missing on 30.12.2011 from her house at about 4.00 PM, they tried to search her but she could not be found. Thereafter, suspecting the role of accused in the missing of her daughter, she went and gave a complaint Ex.PW3/A upon which the present case was registered. The witness SC No. 55/13 Dtd. 06.04.2015 Page 4 of 14 5 deposed that she suspected accused to be behind kidnapping of her daughter because on earlier occasions, she saw the accused roaming near her house, and on one occasion accused was sitting on the stairs of house of her neighbor. The witness also deposed that when her daughter went missing, she found a sum of Rs.10,000/- also missing from her house. On the next day, her daughter was recovered from the house of Meera. Her daughter refused to undergo her internal medical examination. The witness identified the accused in the court as the same person. 4.12 The prosecutrix was examined as PW6. She did not support the case of prosecution and turned hostile. She deposed that she knew the accused as he was residing nearby and belonged to the same village. She initially deposed that nothing happened with her and no incident took place either in December or thereafter. When the Ld. prosecutor questioned the prosecutrix whether anybody took her without her permission, the prosecutrix replied in the negative. She said that she left her house without informing her parents or anybody else and that she did not know the name of the place where she went.

The prosecutrix was declared hostile and was cross examined by the Ld. Prosecutor. In the cross examination conducted by the Ld. Prosecutor, the witness at one place admitted that she had stated to the police during investigation that she was induced and taken away by the accused, but in the next breath the prosecutrix also stated that in her statement U/s 164 Cr.P.C given to the Ld. Magistrate, she had stated that she left her house without telling anybody and then met accused and thereafter on her own will accompanied the accused to Ballabhgarh to the house of one of the friends of accused where they SC No. 55/13 Dtd. 06.04.2015 Page 5 of 14 6 stayed for one day, and then on the next day i.e. 1.1.2012 she was left by the accused near house of her maternal uncle at Bhalaswa Dairy. She also stated that she married the accused of her own free will and that nobody enticed or induced her and that she went out of her own free will. During cross examination conducted by the Ld. Prosecutor, Ld. Prosecutor also tried to elicit as to why the witness had given two different contradictory statements during investigation, one to the investigating officer and one to the Ld. Magistrate, and as to which of the statements was correct. The witness stated that her statement before Ld. Magistrate was correct and that she did not tell the police that she was induced or enticed. She also replied that because of fear of her parents she could not depose properly.

When the witness was cross examined by the accused, the witness admitted that the accused never contacted her or convinced her to go with him and that accused did not make any plan to take her from her house. She also admitted that the accused never put any pressure upon her and the accused never forced her to accompany him. She claimed that she left her house out of her own will and the accused did not ask for it. She also claimed that the accused did not come to her house to take her with him. She also admitted that she used to be scolded by her parents because of failure to do household work and study properly and therefore, she left her house because of the scolding given by her parents. She admitted that accused did not take her by force to any place and it was because her mother had scolded her on the date of incident due to which she started weeping and left the house. She also deposed that she did not go to Faridabad SC No. 55/13 Dtd. 06.04.2015 Page 6 of 14 7 with the accused. When she was questioned whether the accused was falsely implicated in the present case, she replied that she cannot say whether the accused was so implicated.

5 On completion of prosecution evidence, all the incriminating evidence was put to the accused in his statement. The accused generally denied the evidence against him and claimed that he has been falsely implicated. The accused denied that he kidnapped the prosecutrix or in any manner induced or enticed her. He claimed that he was falsely implicated since he belonged to a different religion.

5.1 The accused opted to lead evidence in his defence and examined one witness namely Srichand, who deposed that prosecutrix was married to someone else after the present incident on 28.11.2013. The witness proved marriage card and photographs of the marriage as Ex.DW1/B01 to B-3 and said that he had attended the marriage of the prosecutrix. The witness stated that the age of the prosecutrix must be around 23 years. In the cross examination, however, the witness deposed that the prosecutrix age was deposed by him as per approximation and he did not know in which year the prosecutrix was born.

6 I have heard Ld. Prosecutor and Ld. Counsel for the accused. 7 Ld. Counsel for the accused argued that Ex.PW1/A qua the date of birth of prosecutrix cannot be acted upon since PW1 was not an executor of documents Ex.PW1/B, C & D and therefore those documents are not proved according to law.

8 At the time when these documents were exhibited, no objection whatsoever was raised by the accused. Objection as to the mode of proof of the documents had to be taken by the accused at the time when PW1 was SC No. 55/13 Dtd. 06.04.2015 Page 7 of 14 8 proving these documents. After keeping quiet at the time of evidence of PW1, now the accused cannot claim that the documents were not proved according to law. Objections as to the very admissibility of a document is entirely different from objections as to mode of proof of a document. A document though inadmissible in law even if exhibited cannot be read in evidence. But where a document is otherwise not inadmissible and is proved by some witness who was not executor, objection as to the mode of proof must be raised at the time when document is so exhibited. By keeping quiet at that time, the accused gave an impression to the prosecution that the mode of proof of these documents is not disputed. Had the accused objected to these documents at the time of testimony of PW1, prosecution could have proved these documents by other modes also. But the prosecution was deprived of that opportunity because of the silence of the accused. Now, the accused cannot take benefit of his own silence. 9 It is also argued by the accused that PW3 cannot be called as legal and lawful guardian of PW6 since admittedly father of prosecutrix was alive and therefore, as per Section 6 of Hindu Adoptions and Maintenance Act, PW3 was not a lawful guardian, and therefore it cannot be claimed by the prosecution that prosecutrix was kidnapped, induced or taken away from a lawful guardian.

9.1 The argument is as fallacious as it could have been. For an offence of kidnapping defined in Sec. 359, 360 and 361, it is not necessary that the father/ mother should be having physical lawful guardianship. When the victim was present in her house and if she was induced or enticed and taken away, it is but natural that the victim was in the lawful guardianship of her parents. If the absurd argument of the accused is to be accepted, it SC No. 55/13 Dtd. 06.04.2015 Page 8 of 14 9 would result in anomalous situations. For example, if an accused kidnaps a child, while the child is being taken to or brought from a school or market by the mother, the father being alive, can an accused be permitted to claim that lawful guardian was father and not mother and therefore no offence stood committed. Its answer necessarily has to be in the negative and that too vehemently. The absurd interpretation of lawful guardianship would result into no offence being committed in such situations, which cannot be the intention of law. This argument is therefore rejected. 10 It is also argued that there is a delay of two days in registration of FIR as the prosecutrix went missing on 30.12.2011, whereas the FIR was registered on 1.1.2012. It is claimed that this delay is unexplained. 10.1 Perusal of the FIR reveals that this FIR was registered at 3.10 PM on 1.1.2012, whereas the prosecutrix went missing on 30.12.2011 at 4.00 PM. From the evidence of PW9 Mira, it appears that the present FIR was registered after recovery of the prosecutrix. As per PW9, the prosecutrix came to her house on 1.1.2012 at about 1.30 PM. She thereafter informed her aunt i.e. PW3 and later on PW3 along with her brother and one police official came and took the prosecutrix with them. When the prosecutrix reached house of PW9 at 1.00 or 1.30 PM, the FIR was registered on 1.1.2012 at 3.30 PM. The said fact reveals that the FIR was registered after the prosecutrix had already reached house of Meera and after Meera had delivered information about it to the mother of prosecutrix. 10.2 Though mother of prosecutrix suspected hand of accused in the kidnapping of her daughter, as mentioned in the complaint herself, but no complaint was given formally till 3.10 PM on 1.1.2012. This delay in the present matter assumes importance, particularly, in view of the fact that the FIR was SC No. 55/13 Dtd. 06.04.2015 Page 9 of 14 10 registered after recovery of prosecutrix.

11 Be that as it may, besides PW6 there is no eye witness to the incident of alleged inducement or enticement or taking away of the minor PW6. PW6 was therefore the best witness in this regard. She did not support the prosecution version in her testimony as PW6. In the cross examination, she maintained the stand that she herself accompanied the accused out of her own free will without there being any kind of inducement or enticement and particularly, after she was scolded by her mother. She denied that she took any article from her house while accompanying the accused and that thereafter she willingly married the accused.

12 Entire case of kidnapping the prosecutrix, for any purpose whatsoever, gets demolished from the testimony of PW6.

13 Counsel for the accused has placed reliance upon following cases; 13.1 Ravi Kumar Vs. The State & Anr. 2005 VIII AD (DELHI) 256, wherein it was held that the necessary ingredients of the offence of kidnapping are taking or enticing away the minor. It was held that in that case the girls had reached the age of discretion and they had on their own volition accompanied the man of their choice rather evidence suggested that initiative came from them and they got married of their own accord and were desirous of living with their respective husbands. 13.2 In Satbeer Singh Vs. State 2004 VII AD (DELHI) 623, wherein the age of prosecutrix was informed by the radiologist as 17 years whereas her age was informed by the prosecutrix as 14 years. It was held that the evidence suggested that the prosecutrix was a willing party and that she was tutored and that she implicated the accused.

13.3 Gabbu Vs. State of M.P. (2006) 5 SCC page 740, which is a distinguishable case since in that case the prosecutrix was a married lady for ten years and there was a considerable delay in lodging of the FIR. It was however held in that case that so far as charge U/se 366 of IPC is concerned, mere finding that a woman was abducted is not enough and it must further be proved that the accused abducted the woman with intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person or in order that she may be forced or seduced to illicit intercourse.

13.4 Rajaram Vs. State 2005 (1) JCC 19, wherein it was held that the age of prosecutrix was 16 years or more and she voluntarily abandoned her house to solemnize marriage with the accused and that she was not happy with her parents who were trying to marry the prosecutrix to someone else and prosecutrix also used to be given beatings.

13.5 Sheikh Salim Vs. State of Maharashtra LAWS (BOM) - 2005 - 1 - 32, wherein the age of prosecutrix was about 15 years and the extract of school register did not show as to who recorded the entries and what was the basis and information for recording those entries. In such circumstances, the said judgment is distinguishable on the facts and is not applicable to the facts of the present case.

13.6 B Suresh Vs. The State of Karnataka Criminal Appeal no. 1475 of 2007 decided on 06.02.2013, wherein again in the absence of any witness who deposed about the basis on which the date of birth was entered into school register, the entry was disbelieved and it was held that it cannot be said with degree of certainty that the victim was minor and what was her age. It SC No. 55/13 Dtd. 06.04.2015 Page 11 of 14 12 was also held that there is a margin of two years in the age established through medical evidence.

14 In the case of S. Varadarajan v. State of Madras AIR 1965 SUPREME COURT 942 it was held that, taking or enticing away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping. 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) from the house of the relative of the 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 Sub-Registrar'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 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. There is a distinction between "taking'' and allowing a minor to accompany a person. The two SC No. 55/13 Dtd. 06.04.2015 Page 12 of 14 13 expressions are not synonymous though it cannot be laid down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes. of S. 361. Where the minor leaves her father's protection knowing and having capacity to know the full import of what she is doing, voluntarily joins the accused person, the accused cannot 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 earlier stage solicited or persuaded the minor to do so. If evidence to establish one of those things 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 along with 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. But that part 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 In the present case also, the testimony of the prosecutrix establishes that at the most the prosecutrix accompanied the accused out of her own desire to be the wife of accused. There is no evidence of taking or enticing or SC No. 55/13 Dtd. 06.04.2015 Page 13 of 14 14 inducing the minor by the accused. Under these circumstances, no inference can be drawn that the accused is guilty of taking away the girl out of the keeping of her parents. She willingly accompanied the accused. 16 The long & short of the matter is that the accused is acquitted of the charges. His personal bond/surety bond is cancelled. Surety is discharged. File be consigned to the Record Room.

Announced in the open Court on 6th day of April, 2015.

(Dig Vinay Singh) ASJ/Spl.Judge : NDPS (N-W) Rohini Courts/Delhi SC No. 55/13 Dtd. 06.04.2015 Page 14 of 14