Delhi District Court
State vs . Pramod S/O Rati Bhan Singh on 14 March, 2014
IN THE COURT OF SH. RAKESH KUMAR
ADDL. SESSIONS JUDGE02 :(NORTH EAST):
KARKARDOOMA COURTS : DELHI
Session Case No. 38/2012
Received on assignment 02.05.2012
Arguments concluded on 14.03.2014
Date of Judgment 14.03.2014
FIR No. 480/2011
Police Station Bhajan Pura
Under Section U/s 366 IPC
In the matter of:
State Vs. Pramod S/o Rati Bhan Singh
R/o Village Dorara, PS Adampur,
District Jyotiba Phule Nagar, U.P.
: J U D G M E N T :
1. The above named accused Pramod was initially charge sheeted alonwgith the accused Shishpal and Praveen Kumar U/s 363/366 IPC and 23 J.J. Act but subsequently, during the course of proceeding, accused Shishpal and Praveen were discharged from this case on getting revealed that the accused Shishpal and Praveen are also the witnesses of prosecution in this case, so upon moving of an application by the prosecution that a separate FIR bearing no.257/12 U/s 23 J.J. Act has been registered against the accused Shishpal and Praveen and the separate charge sheet was to be filed against them in the said FIR, both these accused persons were discharged from this State Vs. Pramod Kumar (SC No.38/2012) Page No. 1 of pages 21 case vide a detailed order dated 24.09.2012 and the trial was proceeded against the accused Pramod only.
2. FACTUAL MATRIX: It is the case of the prosecution that on 30.10.2011 complainant Virender Singh S/o Badam Singh, R/o E32, Gali No.3, Subhas Vihar, came to Police Station and got recorded his statement, wherein he alleged that his daughter, namely Renu, aged 14½ years, height 4' 10", complexion - whitish, face
- long, built up - thin and wearing green colour suit & salwar, was missing since 26.10.2011 at about 10.00 p.m, to whom he was searching on his level. He raised suspicion that his daughter was kidnapped by some unknown person. On the basis of said statement, FIR in the instant matter was registered and investigation of the case was handed over to Insp. Ajay Pal Singh, who during investigation came to know that prosecutrix was in touch/relation (sampark) with one boy namely Pramod S/o Rati Bhan. IO Insp. Ajay Pal Singh got conducted the raid at Village Sisona, where accused Pramod came to reside, but nothing could be found out. Thereafter, investigation of the case was assigned to SI Vinay Kumar, who also got conducted the raid for the search of prosecutrix and also got fleshed the W.T. Message, also filled up the form NCRB/MP.S/C.B.I for any information and also continued his search. On 05.12.2011, on receipt of information regarding the whereabouts of the accused and prosecutrix, SI Vinay Kumar sent HC Mukesh alongwith Ct. Ashish and guardian of prosecutrix namely Shishpal Singh and her brother Praveen for the search of prosecutrix and accordingly, HC Mukesh got recovered the prosecutrix alongwith the accused Pramod and produced them at the Police Station. Accused Pramod was interrogated and arrested in this case, whereas, prosecutrix was sent to hospital State Vs. Pramod Kumar (SC No.38/2012) Page No. 2 of pages 21 for her medical examination and thereafter, she was sent to Nirmal Chaya. Uncle (Tau) of prosecutrix and his son namely Shishpal and Praveen arrested in the case by adding Sec.23 J.J. Act and were released on police bail. Bone age test of prosecutrix was got conducted. Statements of witnesses were recorded. Thereafter, on completion of investigation, the charge sheet U/s 363/366 IPC and Sec.23 J.J. Act was filed against the accused persons namely Pramod, Shish Pal Singh and Praveen before the court of Ld. Metropolitan Magistrate concerned. As the offence was exclusively triable by the court of sessions, so the case was committed to sessions and than by way of assignment the case was received in this court.
3. After hearing respective submissions of the both the sides and on finding sufficient prima facie material for farming of charge, a charge u/Sec.366 IPC was framed against the accused Pramod vide order dated 24.09.2012, to which he pleaded not guilty and claimed trial, whereas upon moving of an application by the prosecution that a separate FIR bearing no. 257/12 U/s 23 J.J. Act has been registered against the accused Shishpal and Praveen and the separate charge sheet was to be filed against them, they were discharged from this case
4. In the instant case, prosecution could produce and examined eleven witnesses in support of its case, and vide order dated 11.03.2014 prosecution evidence was closed in this case by making observations that the prosecutrix is no more and almost all the material witnesses have been examined and only few witnesses are left which are of formal nature and sufficient opportunities have already been given.
5. PW1 HC Subhash Chand is the Duty Officer, who proved on record the copy of FIR and his endorsement made on rukka as Ex.PW1/A & Ex.PW1/B respectively.
PW2 HC Mukesh Kumar and PW11 Ct. Ashish are State Vs. Pramod Kumar (SC No.38/2012) Page No. 3 of pages 21 the witnesses, who on 05.12.2011 alongwith the uncle (Tau) of prosecutrix namely Shish Pal and her brother namely Praveen went to village Shishona in search of prosecutrix and thereafter, they alongwith Bhanu Pratap went to Kasba Samble and came to know that accused Pramod alongwith prosecutrix had already left the house of bua of Pramod and were present at the bus stand of Samble. Accordingly, they went to bus stand Samble and on reaching there Shish Pal and Praveen identified the accused as well as prosecutrix Renu, who were standing there, and they were apprehended. The custody of Renu was handed over to Shish Pal and custody of accused Pramod to Ct. Ashish and then they both were brought to PS Bhajan Pura and were produced before the IO SI Vinay Kumar and SHO. They also stated that SI Vinay Kumar took the custody of Renu vide memo Ex.PW2/A and accused Pramod was arrested vide arrest memo Ex. PW 2/B and his personal search was also conducted vide personal search memo Ex.PW 2/C. Wife of Shish Pal (Tai of prosecutrix) was also called at the PS and thereafter Renu was sent to GTB Hospital through Ct. Neetu for her medical examination and Tai of prosecutrix had also accompanied them to the hospital. Thereafter the accused was interrogated and during that course he made disclosure statement Ex.PW2/D, where he disclosed that he took the prosecutrix to Allahabad and married with her. Thereafter, the medical examination of accused Pramod was got conducted and after his medical examination he was put in the lock up. They correctly identified the accused Pramod.
PW3 Smt. Mithlesh, Aunt (Tai) of prosecutrix, stated that she alongwith one lady Constable took the prosecutrix to GTB Hospital for medical examination but she was not allowed to enter the room, where the medical examination of Renu was conducted.
State Vs. Pramod Kumar (SC No.38/2012) Page No. 4 of pages 21 PW4 Shish Pal, uncle (Tau) of prosecutrix, stated that Renu (his niece), who was residing with him at his house At E32, Gali No.3, Subhash Vihar, Delhi, went missing on 26102011. She was residing with him from one month prior to 26102011 and prior to that, she was residing at Village Sisona with her parents, where accused Pramod used to teach (give tuition) to his niece. At that time accused Pramod was studying in a college at Anup Shahar, while his niece was studying in a school at Anup Shahar and due to there close meetings, his niece was sent to Delhi at his house to avoid the company of the accused Pramod. Accused Pramod and his niece used to talk with each other through mobile phone. Earlier also, his niece had also gone away with accused Pramod and she was recovered from the house of Mama of accused Pramod. When his niece went missing on 26.10.2011, he alongwith his son went to PS Bhajanpura for lodging the report and KACHHI report was recorded in the police station and police officials directed him to produce the age certificate of his niece for lodging the PAKKI report. Further on 30.10.2011, he again went to Police Station alongwith his brother Virender Singh, where his statement Ex.PW4/A was recorded by the police and the present case was registered on the basis of his said statement. After registration of the case, many time police went to village Sisona and village of accused i.e. Daurala, in search of his niece and accused Pramod but they could not be apprehended. On 05.12.2011, he accompanied the police to village Sisona and from there the maternal uncle of accused Pramod was taken and from there, they went to Sambhal, where they came to know that accused had already left for Bus Stand Sambhal. He also stated that then they went to Bus Stand of Sambhal, where accused Pramod and his niece Renu were found present and he identified them. They both were apprehended by the State Vs. Pramod Kumar (SC No.38/2012) Page No. 5 of pages 21 police and were brought to PS Bhajanpura.
During cross examination he stated that Renu was sent to his house in the month of September to avoid the bad name (BADNAMI). He conceded that Renu was having mobile with her. His wife and daughterinlaw had seen Renu while talking on mobile with accused Pramod. He never scolded his niece. He could not tell as to whether accused Pramod used to talk with Renu daily or not. His wife used to tell him daily about the telephonic talk of accused Pramod with Renu. He stated that the date of birth of Renu is 20071997. When Renu came to his house, she had already given her examination. Accused Pramod never came to his house. He used to leave his house for work at about 8.30 a.m and used to come back at about 9.0010.00p.m. His niece Renu remained at his house at Delhi for about two months and she went missing on 26.10.11 at about 11.3012.00 mid night. Thereafter, they searched for her but she did not find anywhere. His niece Renu got recovered on 05.12.11 in the company of accused Pramod from Bus Terminal Sambhal. When niece was recovered, she was with the police and her custody was handed over to him and when they came back to Delhi, custody of his niece was taken over by the police. His niece was sent to Nari Niketan and he came to know that the custody of his niece was handed over to her parents thereafter.
PW5 Praveen Kumar stated that his cousin sister namely Renu, used to reside at their house and she went missing on 26.10.2011. Thereafter, he alongwith his father went to PS Bhajanpura for lodging the missing report but it was not lodged, however, the case was registered on 30.10.2011. Accused Pramod, correctly identified, used to give tuition to his cousin sister at village Sisona. Later on, close relationship developed between them and when his uncle (father of Renu) State Vs. Pramod Kumar (SC No.38/2012) Page No. 6 of pages 21 came to know about their relationship, they brought Renu to their house and thereafter, she was residing with them. During the period of her stay at their house, she used to talk with accused through mobile phone and on 26, it was Diwali festival, his cousin sister went missing (USKE YANI PRAMOD KE SAATH CHALI GAYI). Later on, his sister was recovered by the police when she was in the company of accused Pramod.
During cross examination he stated that his cousin sister started taking tuition from accused about 56 months prior to the incident in the village Sisona. He came to know about the friendship/ love affair between accused and his cousin sister in the month of September, 2011 as his uncle (chachaji) informed his parents telephonically about the same. He stated that when his cousin sister went missing, she was 1415 years old. His cousin sister used to call to accused through phone as there were many mobile phones in their house. This fact came to their knowledge bychance and they tried to make her understand peacefully and after two days of their making her understand she left. He denied that when he came to know that Renu used to talk with accused Pramod, he got annoyed and gave beatings to her or that on the occasion of Diwali they planned to commit murder of Renu. He further denied that due to their pressure and threat, Renu left their house or that due to this reason an FIR u/s 23 of J. J Act was registered against them. He stated that his cousin sister has expired about one year ago and this fact came to his knowledge after the last date of hearing and her dead body was found between village Sisona and village of accused. He further stated that her murder was committed by the uncle of accused as he was pressuring his cousin sister to depose that she was not kidnapped by the accused. He denied that murder of his cousin Renu was committed by her father. He conceded that the father of Renu remained in jail for about State Vs. Pramod Kumar (SC No.38/2012) Page No. 7 of pages 21 10 months.
PW6 Ct. Neetu is the witness, who on 05.12.2011 alongwith the aunt (Taai) of prosecutrix, took the prosecutrix Renu to GTB Hospital for her medical examination. The medical examination of Renu was got conducted at the hospital vide MLC No.C6872/11 Ex.PW6/A. PW7 Virender Singh (father of prosecutrix) stated that he had brought his daughter Renu aged about 14½ years to Delhi at the house of his elder brother, from his village as accused was tutor in his village and his daughter had also taken tuition from him. Accused used to give tuitions to the students in the house of his brother at Village Shishona. Accused was also studying at Anupshahar where his daughter also used to go for her study and they came to know from the villagers that accused use to misbehave with his daughter. Thereafter, he brought his daughter to Delhi for her further study. He also stated that he came to know that accused used to talk with his daughter Renu through mobile phone during the period of her stay at the house of his elder brother at Delhi. On 26.10.2011, he received information from his brother that his daughter Renu went missing and accordingly, he came to Delhi and searched their daughter and when his daughter did not trace out, he alongwith his brother went to PS Bhajanpura for lodging the report regarding her missing. Police officials of PS Bhajanpura asked me to bring the T.C of School Ex.PW7/A and thereafter, he went back to his village and after getting the TC issued, he again came to Delhi and handed over the said T.C to police on 30.10.2011. Thereafter, his statement Ex.PW4/A was recorded by the police and on the basis of his said statement, present case was registered. Later on his daughter was recovered from the possession of accused at Sambhal. Her statement was recorded by the Ld. M.M u/s 164 Cr.PC and thereafter she was State Vs. Pramod Kumar (SC No.38/2012) Page No. 8 of pages 21 handed over to him and he took her to his native village. He stated that his daughter is no more now.
During cross examination he stated that he had four children including his daughter Renu, who is eldest one. The age of his youngest child is 78 years. There is a gap of 12 years between the birth of each child. His daughter Renu was born at his house and her date of birth was not got registered by him in any municipal authority. He also stated that at the time of admission of his daughter Renu, he had not produced any document regarding the date of birth however, he had told about the date of birth to the concerned teacher at the time of her admission in first class. Further he had moved an application at the time of getting admission of his child Renu in the school (govt. school) at Deepta kalan. He could not tell the date of birth of his daughter Renu. He stated that at the time of th missing of his daughter, she was studying in 9 class and she was not at marriageable age at the time of her missing.
PW8 Ct. Dinesh Kumar stated that on 18.01.2012 he joined the investigation with the IO SI Vinay Singh and they went to E32, Gali No. 3, Subhash Vihar, North Ghonda, Delhi, where accused Shishpal and accused Praveen found present and they both were arrested vide arrest memo Ex.PW8/A and Ex.PW8/B respectively and their personal search were also conducted vide memo Ex.PW8/A1 & PW8/B1 respectively.
PW9 Inspector Ajay Pal Singh stated that on 30.10.2011, after registration of the present case, investigation was taken over by him and accordingly, he along with SI Vinay Kumar went to the house of complainant i.e E32 Gali No. 3 Subash Vihar, North Ghonda and on reaching there he recorded supplementary statement of complainant Virender Singh and statement of Shish Pal and Praveen. Father of prosecutrix Virender Singh handed over the attested Transfer State Vs. Pramod Kumar (SC No.38/2012) Page No. 9 of pages 21 Certificate Ex.PW9/A of prosecutrix Kumari Renu. Further on 31.10.2011, a raiding party, comprising of one head constable and two constables, was sent to Badayun by him and subsequently, the above said team came back without arresting any person. Thereafter, the investigation was assigned to SI Vinay Kumar.
PW10 SI Vinay Kumar (main IO of the case) stated that on 30.10.2011, complainant Virender Singh came to the PS and got recorded his statement Ex.PW4/A regarding kidnapping of his minor daughter namely Renu by someone. On the basis of his above said statement, he prepared rukka Ex.PW10/A and got the FIR registered in the instant case. Thereafter, SHO Inspector Ajay Pal singh had taken the investigation and then he along with SHO Inspector Ajay Pal went to the house of complainant and Inspector Ajay Pal singh recorded supplementary statement of Virender Singh and statements of Shiesh Pal and Praveen. Further on 07.11.2011, investigation of the case was again assigned to him and on 08.11.2011, he had sent a team comprising of HC Mukesh Jain and Ct. Ashish to Badayun along with Shiesh Pal and Praveen. Subsequently they came back and no one could be recovered and arrested. He got flashed the message all over the India regarding missing of the girl. Further on 05.12.2011, Shiesh Pal and Praveen came to him in the PS and they informed that they came to know about the girl Renu that she was at Badayun. Thereafter, a raiding team comprising of HC Mukesh, Ct. Ashish besides Shiesh Pal and Praveen was sent to Badayun and on the same day they came back along with accused Parmod and girl Renu and they told that girl was recovered from the possession of accused. He took the girl into custody vide recovery memo Ex.PW2/A, thereafter, he recorded the statement of girl Renu Ex.PW10/A. Then he called the aunt of girl Renu namely State Vs. Pramod Kumar (SC No.38/2012) Page No. 10 of pages 21 Mithlesh in the PS and on her reaching there the girl Renu was sent to GTB hospital with L/Ct. Neetu and Mithlesh for medical examination. Accused was arrested by him in the PS itself vide arrest memo Ex.PW2/B and his personal search was also conducted vide personal search memo Ex.PW2/C. From the personal search of accused one purse of black colour and one mobile phone was recovered. Section 366 IPC was also added. After getting the medical examination of girl Renu conducted, she was taken to Snehalaya, opposite Karkardooma Courts and she was admitted there. On 08.12.11 statement of girl Renu was got recorded through SI Rahul Roshan u/s 164 Cr.P.C Ex.PW10/C. On 09.12.11, he brought the Girl Renu from Snehalaya and she was produced before the CWC, Sanskar Ashram, Dilshad Garden and from there the chairperson of CWC ordered to admit the girl in Nirmal Chhaya at Tihar and also ordered to register a case against Shiesh Pal and Praveen as Renu had made allegations against them. Accordingly she was taken to Nirmal Chhaya by him and she was admitted there. Further on 18.01.2012, accused Shiesh Pal and Praveen were arrested by him vide their arrest memos Ex.PW8/A and Ex.PW8/B u/s 23 of J.J Act and their personal search were also conducted vide personal search memo Ex.PW8/A1 & B1. Thereafter, they both were released on police bail. Further on 09.03.2012 the ossification test of girl Renu was got conducted through medical board at DDU hospital on the direction of Chair Person of CWC Nirmal Chhaya and medical board opined about the age of Renu as more than 15 years and less than 17 years, vide its report Ex.PW10/D which was collected by him from DDU hospital.
During cross examination, he conceded that prosecutrix had stated her age before Ld. MM u/s 164 Cr. P.C as 19½ years. Further complainant i.e father of the prosecutrix namely State Vs. Pramod Kumar (SC No.38/2012) Page No. 11 of pages 21 Virender Singh had stated the age of prosecutrix as 14½ years in his statement on which the present case was registered. He had collected the TC and certificate regarding the age of prosecutrix issued by Principal of Kissan Adarsh Junior High School, Dupta Kalan, Badayun. He conceded that the application dated 23.07.2007 moved by complainant Virender Singh addressing to the Principal of Kissan Adarsh Junior High School, Dupta Kalan, Badayun for admission of Kumari Renu in class VI, in which he mentioned that Janam patri ke anusar meri putri ki janam tithi 20.07.1997 hai, despite having this fact he did not see that Janam patri. Complainant Virender Singh did not produce any birth certificate issued by Gram Panchayat or any Municipal corporation. The prosecutrix was got admitted directly in VI class on 23.07.2007 as per the complainant. He had moved application before the court for getting the ossification test of the prosecutrix done. He denied that doctors opined the age of prosecutrix at his instance. Further he came to know that the prosecutrix is no more at present and her father is facing murder trial. He could not tell as to whether prosecutrix was having apprehension of her life from Shiesh Pal and Parveen.
6. After conclusion of prosecution evidence, statement of accused Pramod u/s 313 Cr. P. C was recorded in which he vehemently denied the story of the prosecution and the evidence brought up by the prosecution and claimed himself to be innocent and stated that this is a false case and he was implicated in this case on the basis of suspicion. He, however, opted not to lead any evidence in defence.
7. I have carefully heard the rival submissions of both the sides. I have also perused the entire material placed on record.
8. In the instant case the accused Pramod has been charged with the offences U/s 366 IPC and to prove the same State Vs. Pramod Kumar (SC No.38/2012) Page No. 12 of pages 21 prosecution has to prove that the accused Pramod had kidnapped the prosecutrix namely Renu, who is minor and aged about 14 years, out of the legal guardianship and without the consent of her legal guardian with intend that she may be compelled for marriage against her will.
9. According to Ld. Addl. PP for the State the case of the prosecution is crystal clear. By the statements of PW4 Shish Pal (Tau of prosecutrix), PW5 Praveen Kumar (cousin of prosecutrix) and PW7 Virender Singh (father of prosecutrix), coupled with the testimonies of official witnesses, it has been established that accused had kidnapped the minor girl out of the lawful guardianship of her uncle (Tau) namely Shishpal without his consent or knowledge and married with the prosecutrix without her consent. Factum regarding prosecutrix being a minor is proved on record by the Transfer Certificate (TC) Ex.PW7/A, wherein date of birth of prosecutrix is mentioned as 20.07.1997. Further it has been established on record that both accused and prosecutrix were known to each other as prosecutrix used to take tuitions from the accused. It has also been established on record that when the prosecutrix was got recovered, she was with accused Pramod and even this fact has not been denied by the accused at the time of recording of his statement U/s 313 Cr.P.C.
Per contra as per Ld. Counsel for accused, the accused is innocent and he has no role in taking away of the girl from the lawful custody of her guardian. The prosecutrix was a major and she was in love with accused and had accompanied to the accused on her free will, so it can not be said that she was ever taken away out of the lawful guardianship and as such no offence is made out against the accused. Further it has not been established on record that accused kidnapped the prosecutrix out of the legal guardianship with intend to compel State Vs. Pramod Kumar (SC No.38/2012) Page No. 13 of pages 21 her for marriage, specially in the circumstances when prosecutrix has not been examined in this case. The material brought on record is not sufficient to hold the accused Pramod guilty U/s 366 IPC.
10. After giving my thoughtful consideration to the rival submissions of both the sides, I find that as regards to the claim of Ld. Defence counsel that the material brought on record is not sufficient to hold the accused Pramod guilty U/s 366 IPC as the prosecution has been failed to produce and examine the prosecutrix before the Court, who could be the only witness to establish that she was taken away by the accused with intent to compel her for marriage. But certainly the prosecution has remained successful in bringing home the guilt of the accused for the offence punishable U/s 363 IPC by establishing beyond doubt that the prosecutrix was a minor girl and she had gone out of the custody of her lawful guardian at the instance of accused Pramod.
To constitute an offence u/s 363 IPC:
(i).The person kidnapped must be a minor or a person of unsound mind;
(ii).there must be taking or enticing of a minor or a person of unsound mind;
(iii).the taking or enticing must be from the keeping of a lawful guardians of a minor or person of unsound mind; and
(iv).the taking or enticing must be without the consent of such guardian.
The minor means under 16 years in the case of a male or under 18 years in the case of female. In the case of minor girls the section is attracted irrespective of the question whether she is married or unmarried. The offence of kidnapping consists solely of taking a minor from the keeping of her lawful guardian State Vs. Pramod Kumar (SC No.38/2012) Page No. 14 of pages 21 and no intention need be established.
The word "take" means to cause to go, to escort, or to get into possession. The taking need not be by force, actual or constructive.
The expression "enticing" in the section, involves that while the person kidnapped might have left the keeping of the lawful guardian willingly still the state of mind that brought about the willingness must have been induced or brought about in some way by the accused. It involves an idea of inducement by exciting hope or desire in the other.
A minor is not competent to give her consent to her taking because it is the consent of the guardian which is material. However, a minor is certainly competent to leave the protection of her guardian of her own accord.
11. In the instant case it has been proved on record that prosecutrix was a minor as the prosecution has proved on record the Transfer Certificate of the last attended school of prosecutrix as Ex.PW7/A, wherein the age of prosecutrix has been mentioned as 20.07.1997. It means, on the day of occurrence i.e. on 26.10.2011 prosecutrix was around 14 years and 3 months old. Even it has come on record, that ossification test of the prosecutrix was got conducted through Medical Board at DDU Hospital on the directions of Chairperson of CWC Nimal Chhaya and medical board, vide its report Ex.PW10/D, opined about the age of prosecutrix Renu as more than 15 years and less than 17 years. Said report of Board further strengthen the case of prosecution that she was minor at the time of her taking away out of the custody of her lawful guardian. On the other hand accused has been failed to bring on record any documentary material to prove that prosecutrix was a major. Since the prosecution has been able to prove that at the time of taking way of prosecutrix, she was minor, so the State Vs. Pramod Kumar (SC No.38/2012) Page No. 15 of pages 21 defence of the accused that she was in love with him and had consented for accompanying him has become meaningless.
Now only question left to be adjudicated upon is as to whether the prosecutrix was taken away or enticed by the accused out of the custody of her lawful guardian and the said taking away or enticing of prosecutrix was without the consent of her guardian?
In the case in hand by the testimonies of PW4 Shish Pal, PW5 Praveen Kumar and PW7 Virender Singh it has very well come on record that the prosecutrix and the accused were earlier known to each other and it was the accused only on whose instance the prosecutrix had gone out of the custody of her lawful guardian. PW4 & PW5 have clearly testified that accused used to give tuitions to prosecutrix at village Sisona, where the prosecutrix was residing with her parents and accused was studying in a college and they were close to each other and to avoid the proximity of prosecutrix from the company of accused, she was sent to Delhi at the house of PW4 Shish Pal. It has also clearly come on record by the testimony of PW4 that the accused and prosecutrix used to talk with each other through mobile phones and they were very well in touch with each other. It is also further testified by PW4 that on the earlier occasions also, the prosecutrix had gone away with the accused Pramod and she was recovered from the house of the mama of accused Pramod.
The factum of taking away of the prosecutrix out of the legal guardians is concerned, the same fact is also established on record. First of all, in the cross examination of PW4 Shish Pal i.e. uncle (Tau) of prosecutrix question of recovery of prosecutrix was put to the said witness by Ld. Counsel for accused and he admitted that on 05.12.2011 he accompanied the police to Village Sisona, from where the maternal uncle of State Vs. Pramod Kumar (SC No.38/2012) Page No. 16 of pages 21 accused Pramod was taken and from there they went to Sambhal, where the bua of accused Pramod was residing and on the basis of the information furnished by Bua of accused Pramod, his niece Renu got recovered on 05.12.2011 in the company of accused Pramod from Bus Terminal Sambhal.
Similarly, PW5 has also confirmed in his testimony that there was a friendship/love affair between the accused and prosecutrix (his cousin sister) and she used to call to accused through phone and this fact came to their knowledge by chance. The factum of recovery of prosecutrix from the company of accused has also been established by the testimony of PW7 Virender, PW8 Ct. Dinesh Kumar and PW10 SI Vinay Kumar in their respective testimonies. Even otherwise, it is the accused, who himself has admitted in his statement recorded U/s 313 Cr.P.C that he and the prosecutrix were apprehended by the police at the bus stand Sambhal on the identification of PW4 Shish Pal and they both were brought back to PS Bhajan Pura. Further nowhere in the entire evidence, it has come on record that the prosecutrix was taken away by the accused with the consent of her guardian, rather, in their respective testimonies PW4 Shish Pal, PW5 Praveen Kumar and PW7 Virender Singh have confirmed that she was taken away without their knowledge and consent.
12. In the light of aforesaid, the case of the prosecution is established U/s 363 IPC against the accused beyond the shadow of reasonable doubt and therefore, I hereby hold the accused guilty U/s 363 IPC.
13. Now he be heard on the point of quantum of sentence.
(Announced in the open (RAKESH KUMAR)
court today on 14.03.2014) ADDL. SESSION JUDGE (NE)
KARKARDOOMA COURT/DELHI
State Vs. Pramod Kumar (SC No.38/2012) Page No. 17 of pages 21
IN THE COURT OF SH. RAKESH KUMAR
ADDL. SESSIONS JUDGE02 :(NORTH EAST):
KARKARDOOMA COURTS : DELHI
Session Case No. 38/2012
Received on assignment 02.05.2012
Arguments concluded on 14.03.2014
Date of Judgment 14.03.2014
FIR No. 480/2011
Police Station Bhajan Pura
Under Section U/s 363/366 IPC
In the matter of:
State Vs. Pramod S/o Rati Bhan Singh
R/o Village Dorara, PS Adampur,
District Jyotiba Phule Nagar, U.P.
ORDER OF SENTENCE
14.03.2014 (at 4.00 p.m)
Present: Sh. Dharam Chand, Ld. Addl. PP for State.
Convict is present in his person with counsel Sh. R.S. Maurya, Advocate.
Arguments on the question of sentence heard.
1. I have given my thoughtful consideration to the rival submissions of Ld. Counsel for the convict as well as of Ld. Addl. PP for the State on the point of quantum of sentence to be awarded to the convict.
2. Vide my judgment of even date, I have already convicted the accused Pramod Kumar for the offence punishable Under Section 363 IPC.
State Vs. Pramod Kumar (SC No.38/2012) Page No. 18 of pages 21
3. The convict is praying for mercy on the ground that he is a young man aged about 24 years. He is a poor person and labour by profession and already learnt a great lesson as he has already remained in custody in this case for a considerable period of around eleven months and now he is seeking a chance to get himself reformed. He also undertakes that he will not give any chance of complaint in future. It is also stated on behalf of convict that convict has a great responsibility to look after his aged parents and two younger sisters. He is the sole bread earner for his family. He is not a previous convict. He is praying for mercy on the aforesaid grounds.
On the other hand according to Ld. Addl. PP for the State, the convict has committed serious offence which is against the society at large and he deserves the stern punishment. Punishment should not be a nail bitting one. He also submitted that the offence committed by the convict is a serious crime and the circumstances demand that the convict should be given severe punishment to have a deterrent effect on the society.
4. Sentencing is a very difficult process. At one end there is a question of personal liberty and at the same time on the other hand the question of larger interest of society is involved.
It has been very aptly indicated in Dennis Councle MCGDautha Vs. State of Callifornia (402 US 183: 28 L.D. 2d
711) that, "no formula of foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such State Vs. Pramod Kumar (SC No.38/2012) Page No. 19 of pages 21 judgment may be equitably distinguished."
In 2008 X AD (S.C.) 645 in case titled as Siriya @ Shri Lal Vs. State of Madhya Pradesh it has been held that, "In operation of Sentencing System, law should adopt corrective machinery or the deterrence based on factual matrix
- Facts and given circumstances in each case, the nature of the crime, in manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, nature of weapons used and all other attending circumstances are relevant in award of sentence - Sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy in law. ....... In each case, there should be proper balancing of aggravating and mitigating circumstances on the basis of relevant circumstances in a dispassionate manner."
In Sevaka Perumal etc Vs. State of Tamil Nadu (1991 (3) SCC 471) it was held that, "It is, therefore, the duty of every court to award proper sentence having regard to the nature of offence and the manner in which it was executed or committed etc. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of "order" should meet the challenges confronting the society.
Friedman in his "Law in Changing Society" stated that, "State of criminal law continues to be - as it should be
- decisive reflection of social consciousness of society". Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix.
State Vs. Pramod Kumar (SC No.38/2012) Page No. 20 of pages 21
5. Keeping in view the entire facts and circumstances of the case, I have come to the conclusion that interest of justice demands that the convict should be given a chance to get himself reformed and therefore, the convict, who is already behind the bar for the period around eleven months, is awarded sentence u/s 363 IPC to undergo rigorous imprisonment for the period already undergone by him in this case. He is also directed to pay a fine of Rs.500/, in default of payment of fine, simple imprisonment for the period of fifteen days. Order on sentence is passed accordingly. The convict be set at liberty if he is not required to be detained in any other case. Copy of the judgment and order be given to the convict free of cost.
6. File be consigned to Record Room after completion of necessary formalities.
(Announced in the open (RAKESH KUMAR)
court today on 14.03.2014) ADDL. SESSION JUDGE (NE)
KARKARDOOMA COURT/DELHI
State Vs. Pramod Kumar (SC No.38/2012) Page No. 21 of pages 21