Delhi District Court
3.Title State vs . Ravinder on 12 May, 2014
THE COURT OF MS NEHA PALIWAL :
METROPOLITAN MAGISTRATE, EAST
KARKARDOOMA COURTS : DELHI
1.FIR No. 86/2010
2.Unique Case ID No. 02401R0344632010
3.Title State Vs. Ravinder
3(A).Name of complainant Bimla Devi, W/o Sh. Prem Chand,
R/o H.No. 14/15, Saket Block,
Mandawali, Delhi.
3(B).Name of accused Ravinder, S/o Sh. Bharat Singh, R/o
H.No. 609/7, Gali No.1, Indira
Colony, Mandawali.
4.Date of institution of challan 08/12/10
5.Date of Reserving judgment Not reserved. Pronounced on the
same day.
6.Date of pronouncement 12/05/14
7.Date of commission of offence 26/02/10
8.Offence complained of Under Section 363 IPC
9.Offence charged with Under Section 363 IPC
10.Plea of the accused Pleaded not guilty
11.Final order Acquitted for the offence U/s 363
IPC.
BRIEF REASONS FOR THE DECISION OF THE CASE:
1. The case of the prosecution in a narrow compass is that on 26.2.2010, after 4.30pm the daughter namely Ms. Vinita of FIR No. 86/2010 State Vs Ravinder 1 of16 complainant Smt. Bimla Devi was kidnapped by the accused out of keeping of her lawful guardianship. Thus it is the case that the accused has committed the offence U/s 363 IPC.
2. The charge sheet was filed in the court on 8.12.2010 and after compliance of Section 207 Cr. P.C. and after hearing parties, charge for the offence punishable u/s 363 IPC was framed on 19.5.2011, against the accused. The accused pleaded not guilty and claimed trial and thereafter the matter was fixed for prosecution evidence.
3. Prosecution in order to prove its case against the accused in total has examined as many as eight witnesses i.e. PW1 Smt. Bimla Devi(Complainant), PW2 Ms. Vinita (prosecutrix), PW3 Dr. Rachna Jain, PW4 HC Satish, PW5 Dr. Aparna Chaturvedi, PW6 Ms. Suchi Laler, Ld. ACJ/ARC/CCJ, (North East: Karkardooma Courts), PW7 SI Parveen Chauhan(IO) and PW8 ASI Rampal Singh (Duty Officer).
4. PW1 Smt. Bimla Devi is the complainant and she has deposed in the year 2012 before the court that about 2 years back her daughter Vinita aged about 16 years had left the house on the pretext of purchasing milk. However, despite waiting till 6.00pm as she did not return, she tried to search her , but her daughter could not be traced. Thereafter, on the next day she went to the PS and got her FIR No. 86/2010 State Vs Ravinder 2 of16 statement Ex. PW1/A recorded. The witness identified her thumb impression on the same.
5. It was further deposed by her that after 23 days she came to know that her daughter was kidnapped by accused Ravinder. The witness correctly identified the accused present in the court. It was further submitted that after few days her daughter came back at the Police Station and at that time she preferred to live with her husband. It was further deposed by the witness that however, for the past two months her daughter is residing with her.
6. In her cross examination by the Ld. Counsel for accused, it was deposed by the witness that she was aware that her daughter was not kidnapped by the accused and she has not mentioned even the name of the accused in her complaint. It was further admitted that her daughter has refused to accompany her to her house from the Police Station and had told her that she wished to live with her husband.
7. PW2 Ms.Vinita , is the victim/prosecutrix and she has deposed that she had went with the accused Ravinder and got married with him in some temple. She has further deposed that after few days she came to the Police station and narrated the incident to the police. Thereafter, police arrested Ravinder and she was sent to Nari Niketan. It is further deposed that after getting released from FIR No. 86/2010 State Vs Ravinder 3 of16 Nari Niketan, she was living with her husband.
8. It was further deposed by the witness that for the last two months she is residing with her parents as her husband used to beat him after consuming liquor and drugs. The witness correctly identified the accused before the court.
9. In her cross examination by Ld. Counsel for accused, it was deposed by the witness that she lived with the accused for about one year and when her statement was recorded U/s 164 Cr.P.C. she has stated that she wished to go with her husband and not with her parents and from Nari Niketan, she had accompanied the accused to her house.
10. It was admitted by the witness that she had got married to the accused out of her own wish. It was however ,deposed by her that presently she did not want to go with accused and she has lodged a complaint against accused as the accused used to beat her.
11. PW4 HC Satish is the second IO and has deposed that he had only prepared charge sheet in the present matter and has sent the same to the court for trial.
12. PW3 Dr. Rachna Jain is the Radiologist who had examined the prosecutrix and had given the Xray report Ex. PW3/A. It is further deposed by her that she was part of the board of doctors who had given the age estimation report of the victim/prosecutrix Vinita FIR No. 86/2010 State Vs Ravinder 4 of16 Ex. PW3/B and the said report is containing the opinion regarding age at point B as per which the age of the victim/prosecutrix was between 15 to 16 years in March 2010.
13. PW5 Dr. Aparna Chaturvedi has identified the signatures of Dr. Anjana Aggarwal who had prepared the MLC bearing no. 10/2010 dated 6.3.2010 of prosecutrix/victim Vinita. MLC is Ex. PW5/A.
14. PW6 Ms. Suchi Laler, Ld. ACJ/ARC/CCJ North East , Karkardooma Courts is the witness who had recorded the statement of prosecutrix Vinita U/s 164 Cr.P.C.. She has deposed that on 6.3.2010 an application Ex. PW6/A was received by her from her Ld. Link MM Ms. Savitri, preferred by IO/SI Rohit for recording of the statement of prosecutrix Vinita and after being satisfied as to the voluntariness and competency of the witness to depose, she recorded the statement of prosecutrix in her own handwriting on 6.3.2010 Ex. PW6/B and thereafter, proceedings upon completion was sent to the concerned court in a sealed envelope. The sealed envelope was opened in the presence of witness and the witness identified her signatures on each and every page of the statement.
15. In her statement recorded U/s 164 Cr.P.C., it was deposed by the prosecutrix/victim Vinita, before the Ld. MM that she was FIR No. 86/2010 State Vs Ravinder 5 of16 forced by her mother to work. She loved Ravinder and on 11.2.2010, she took Ravinder to Haridwar and they resided there and on 1.3.2010, they came to Delhi and resided in Hotel and on 3.3.2010 they married and returned back home. It was deposed that out of her own will she had went with accused Ravinder and does not want to go back to her parents and wants to live with Ravinder as she loved him.
16. PW7 SI Parveen Chauhan is the investigating officer in the present matter. He has deposed in his examination in chief that on 27.2.2010, at about 8.30pm the complainant came and got her statement recorded regarding missing of her daughter namely Vinita aged 16 years Ex. PW1/A. Thereafter, he prepared rukka Ex. PW7/A bearing his signatures at point X and gave the same to duty officer for registration of FIR and thereafter he went alongwith the complainant to the spot. After some time Ct. Yashpal came and handed over copy of FIR and rukka to him.
17. It was further deposed that he completed the documents regarding the missing persons and wireless message was flashed and information was sent to NCRB Missing Squad.
18. It was further deposed that on 3.3.2010 complainant came at the PS and stated that she had doubt, that her neighbour Ravinder might have taken her daughter. Thereafter, he conducted local FIR No. 86/2010 State Vs Ravinder 6 of16 inquiry.
19. It was further deposed that on 5.3.2010, the prosecutrix came at the PS and gave statement that she was in love with her neighbour Ravinder and he took her at Haridwar and she got married with him at Delhi and she provided the photocopy of the marriage certificate alongwith marriage agreement and affidavit.
20. The medical examination of prosecutrix was conducted and on 6.3.2010 her statement was recorded U/s 164 Cr.P.C. and thereafter she was sent to Nari Niketan. Her ossification test was conducted from LBS Hospital and doctors opined her age between 1516 years. It was further deposed that on 9.4.2010, accused came at the police station after getting anticipatory bail and was formally arrested vide arrest memo Ex. PW7/B. The witness identified his signatures upon the same at point X. It was further deposed that thereafter, accused was released on bail. The witness correctly identified the accused, present before the court. It was further deposed that thereafter, he was transferred from the PS and handed over the case file to the MHC(R).
21. In his cross examination, it was deposed by him that on 5.3.2010, prosecutrix herself came at the PS and had recorded her statement that on 11.2.2010, she had gone to Haridwar with accused Ravinder and had stated that she had married with him in temple at FIR No. 86/2010 State Vs Ravinder 7 of16 Yamuna Bazar on 3rd .
22. PW8 ASI Rampal Singh, is the duty officer and he has proved before the court the registration of FIR bearing no. 86/2010, U/s 363 IPC Ex. PW8/A and endorsement on rukka Ex. PW8/B both bearing his signatures at point A.
23. As no other prosecution witness was examined, prosecution evidence was closed in the present matter vide order of the court dated 16.1.2014 and the matter was fixed for statement of accused.
24. Thereafter, the accused was examined U/s 313 Cr.P.C. read with Section 281 Cr.P.C. by the court on 27.1.2014 and his statement was recorded wherein accused stated that he is falsely implicated and the victim Vinita out of her own will had married to him and he had not kidnapped her. However, as the accused denied to lead any evidence in defence, defence evidence was closed and the matter was fixed for final arguments.
25. I have heard the arguments as advanced by Ld. APP for the state, Ld. counsel for the accused and perused the entire material available on record.
26. It is a settled legal principle that the prosecution has to prove its case against the accused beyond the shadow of all reasonable doubts and its case has to stand upon its own legs. The prosecution cannot draw any strength from the weakness of the case of the FIR No. 86/2010 State Vs Ravinder 8 of16 accused. It is also a settled proposition in the criminal law that the accused had a pious right of not to be convicted for an offence which is not established beyond reasonable doubts by the prosecution. The burden of proof in a criminal trial always rest upon the prosecution and the same never shifts on accused.
27. In the present case in hand the accused has been charged for the offence punishable U/s 363 IPC.
Section 363 IPC reads as under: Punishment for kidnapping: Whoever, kidnaps any person from 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.
28. Section 363 IPC provides for punishment for kidnapping however the offence is defined U/s 361 IPC, which reads as under:
29. Section 361 Whoever takes or entices any minor under sixteen years of age if a male, or under 18 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.
FIR No. 86/2010 State Vs Ravinder 9 of16
30. Thus for the purpose of attraction of the provision of Section 361 IPC i.e. for the purpose of proving the offence of kidnapping four essential ingredients are required to be satisfied, namely:
(1) Taking or enticing away a minor or a person of unsound mind.
(2) Such minor must be under sixteen years of age, if a male, or under eighteen years of age, if a female. (3) The taking or enticing must be out of the keeping of the lawful guardian of such minor or person of unsound mind, (4) Such taking or enticing must be without the consent of such guardian .
31. Thus in order to constitute the offence of kidnapping from lawful guardianship, taking or enticing out of the keeping of the lawful guardianship is essential.
32. In the present case in hand it has been proved by the prosecution that the age of the victim/prosecutrix as on 10.3.2010 was between 1516 years, by way of the age estimation report proved by PW3 Dr. Rachna Jain. The said witness despite opportunity has not been cross examined by the counsel for the accused and therefore, the report Ex. PW3/B specifying the age of the victim between 1516 years remains unrebutted. In view of the same the victim/prosecutrix was minor at the time of registration of the FIR No. 86/2010 State Vs Ravinder 10 of16 present case i.e. on 2627.2.2010.
33. In the present matter it is stated by PW1 in her statement before the court that her daughter had left the house on the pretext of purchasing milk, and when she did not return, thereafter she started searching her. In Ex. PW1/A as well it is written that the girl has left the house on the pretext of purchasing milk.
34. PW2 i.e. the prosecutrix/victim has also deposed that she had went with the accused and had got married to him and in her statement U/s 164 Cr.P.C as well it was deposed by her that she was forced by her mother to work. It was further deposed that she loved the accused and on 11.2.2010, she had taken the accused to Haridwar and on 3.3.2010, they had married in Delhi and thereafter, they came back. She has further deposed that out of her own will she had went with the accused and wants to live with accused.
35. PW7 has also deposed that the prosecutrix had herself on 5.3.2010, came to the police station and has stated that she was in love with her neighbour Ravinder and she had also provided the photocopy of marriage certificate alongwith marriage agreement and affidavit.
36. PW5 has proved the MLC. In the MLC as well it was written by the doctor on duty whose signature have been identified by PW5 before the court that patient has given history that she has left home FIR No. 86/2010 State Vs Ravinder 11 of16 with accused out of her own consent on 11.2.2010 and had got married to him on 3.3.2010 and has not given any history of violence or forceful intercourse. In the MLC the patient has even refused her internal examination.
37. In the case of S. Vardarajan V State of Madras AIR 1965 SC 942, it was held by the Hon'ble Supreme Court that there is a distinction between "taking" and allowing a minor to accompany a person. Where a minor leave her guardian's protection knowing and having capacity to know the full import of what she is doing and voluntarily joins the accused person, in such a case there is no taking by the accused. Something more, some kind of inducement held out by the accused or an active participation by him in the formation of intention of the minor to leave the guardian's house has to be shown. If the minor leave her guardian's protection without the accused having played any active part and later joins the accused and the accused helps her in her design not to return to her guardian's house, then, though the part played by the accused can be regarded as facilitating the fulfillment of intention of the minor, that part played by the accused falls short of an inducement and would not amount to taking.
38. It was held by the Hon'ble Apex Court in the case of State of Haryana Vs Raja Ram AIR 1973 SC 819 that the object of Section FIR No. 86/2010 State Vs Ravinder 12 of16 361 IPC is as much to protect the minor children from being seduced for improper purpose as to protect the rights and privileges of guardians having the lawful charge or custody of their minor wards. The gravermen of this offence lies in the taking or enticing of a minor under the age specified in this section out of the keeping of the lawful guardian without the consent of such guardian. The words "takes or entices any minor out of the keeping of lawful guardian of such minor" in Section 361 IPC are significant.
39. It was further held by the Hon'ble Apex Court that on the plain reading of this section the consent of the minor who is taken or enticed is wholly immaterial. Nor is it necessary that the taking of enticing must be shown to have been by means of force or fraud, persuasion by the accused person which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardian would be sufficient to attract the section.
40. The taking therefore, as contemplated under Section 361, need not be by force. The word take means to cause to go, to escort or to get into possession. Inducement of the accused to make the girl leave her home amounts to 'taking' within the meaning of this section.
41. It was held in the case of Thakorlal Vadgama Vs State of Gujrat AIR 1973 SC 2313 by the Hon'ble Apex Court that the two words 'takes'' and 'entices' as used in Section 361 are intended to be FIR No. 86/2010 State Vs Ravinder 13 of16 read together, they suggest that if the minor leaves her parental home, completely uninfluenced by any promise, offer or inducement from the side of the accused, then the accused is not guilty U/s 361 IPC. However, if the accused had laid a foundation by inducement, allurement, or threat etc., and if this can be considered to have influenced the minor or weighed with her in leaving her guardian's custody or keeping and going to the accused, then it would be difficult for the accused to plead that the minor had voluntarily come to him.
42. It was further held by the Hon'ble Apex Court that if the accused had at an earlier stage solicited or induced her in any way to leave her guardian's protection, by indicating or conveying or encouraging suggestion that he would give her shelter, then the mere circumstance that his act was not the immediate cause of her leaving her parental home or guardian's custody would constitute no valid defence and would not absolve him.
43. In the present case in hand, in view of the testimonies of the witnesses no evidence has come on record that there was any taking of the prosecutrix or enticement on the part of the accused. The prosecutrix herself has went out of her house on the pretext of purchasing milk, she had herself came back to the PS and had presented the copy of the marriage agreement, affidavit and FIR No. 86/2010 State Vs Ravinder 14 of16 marriage certificate to the IO. Accused was later on arrested on granting of anticipatory bail. The prosecutrix has even given a history of voluntarily going, in front of the doctor who had prepared MLC and has even in her statement recorded U/s 164 Cr.P.C. had stated that as she loved Ravinder she took him to Haridwar and out of her own will went with the accused. She has stated that her mother forced her to work. She has further stated that she want to live with her husband.
44. In the present matter, thus nothing has been shown in record in order to suggest that accused has laid a foundation by inducement, allurement or threat to the minor or had at an earlier stage solicited or induced her by giving her any encouraging suggestion. It is further established by the deposition of witnesses that the minor had left the house without any promise, offer or inducement from the side of accused and she willingly accompanied him and the law did not cast upon the accused the duty of her taking her back to her lawful guardian. The accused by complying with her wishes cannot be said to have taken her out of keeping of her lawful guardianship. Thus, the prosecution has failed to establish any kind of inducement held out by the accused or an active participation by him in the formation of intention of minor to leave guardian's house.
45. The testimony of the prosecutrix, her statement U/s 164 FIR No. 86/2010 State Vs Ravinder 15 of16 Cr.P.C., coupled with testimony of PW1 complainant that she had left the house herself on pretext of purchasing milk, shows that the minor has left her guardian's protection, knowing the full import of what she is doing and had voluntarily joined the accused and in such case, there is no taking by the accused. Thus the findings as laid by the Hon'ble Apex Court in the case of S. Vardarajan (Supra) comes to the rescue of accused in the present matter.
46. In view of the above said discussions and findings as the prosecution has failed to prove any enticement or taking of the minor girl by the accused out of keeping of her lawful guardianship, therefore, the only finding which can be given against the accused is that of not guilty.
47. Thus the accused is acquitted for the offence U/s 363 IPC.
48. For the purpose of 437A Cr. P.C. personal bond and surety bonds of the accused stands extended at request for the period of next 6 months.
49. File be consigned to record room after due compliance.
Announced in the (Neha Paliwal)
Open Court on 12.5.2014 Metropolitan Magistrate
KKD,Delhi
It is certified that this judgment contains 16 pages and each page bears my signature.
(Neha Paliwal)
Metropolitan Magistrate
FIR No. 86/2010 State Vs Ravinder 16 of16
KKD,Delhi
FIR No. 86/2010 State Vs Ravinder 17 of16
FIR No. 86/2010 State Vs Ravinder 18 of16