Delhi District Court
State vs James Raja S/O. Fransis Parkash, on 9 April, 2012
IN THE COURT OF SHRI SANJAY GARG : ADDITIONAL SESSIONS JUDGE -
01 (EAST) :KARKARDOOMA COURTS : DELHI
SC No. 151/11
FIR No. 583/10
PS Mandawali
Under Section : 363/366 IPC
State Versus James Raja S/o. Fransis Parkash,
R/o. 377, Krishna Nagar Bagh, Gaziabad,
U.P.
Date of Institution of Case : 08.12.11
Date on which Judgment Reserved : 09.04.12
Date on which Judgment Delivered : 09.04.12
J U D G M E N T
1. In brief, the case of the prosecution is that PW2 Satish Kumar, uncle of prosecutrix visited PS Mandawali on 24.11.10 and made a complaint regarding missing of prosecutrix which was directly recorded as FIR Ex.PW2/A. In his complaint he mentioned that his niece, who was residing with him and was studying in 10th class, on 23.11.10 at about 8 a.m left for taking tuitions at Rosy Computer College, A7, Pandav Nagar but has not returned. He is sure that someone giving her enticement had taken away his niece. He has doubt on Arun Wadhwa and a computer teacher.
2. IO PW8 ASI Yash Pal Singh got the WT message and due and cry notice issued. On 15.4.11 PW4 Naveen Joseph produced accused and prosecutrix in PS. Accused was arrested. Prosecutrix was sent to hospital for medical examination where she refused to get herself medically examined. Prosecutrix was produced before Ld. M.M, where her statement u/s. 164 Cr.PC was recorded. After investigation police filed chargesheet against the accused u/s. 363/366 IPC.
FIR No. 583/10 State Vs. James Raja page 1 of page 6
3. Charge u/s. 363/366 IPC was given to accused, to which he pleaded not guilty and claimed trial.
4. Prosecution examined 8 witnesses to prove his case. PW1 is the prosecutrix. She admitted her signatures on her statement Ex.PW1/A recorded u/s. 164 CrPC. PW2 Satish Kumar is the complainant and uncle of the prosecutrix. He proved his complaint (directly recorded as FIR) as Ex.PW2/A. PW3 Smt. Swarn Kanta, SST Teacher proved application form, copy of school leaving certificate and copies of the admission register as Ex.PW3/A to PW3/D. PW4 Sh. Naveen Joseph is the brother of accused and he had produced prosecutrix and accused before the police on 15.4.11. PW5 HC Rajender Kumar was duty officer on 24.11.10, he proved FIR Ex.PW2/A. PW6 Sh. Rajesh Kumar Mishra proved certificate of marriage issued by him as Ex.PW6/A. PW7 Dr. Onkar Singh Tomar proved MLC of accused Ex.PW7/A. PW8 ASI Yash Pal Singh is the IO, he proved arrest memo and personal search memo of accused Ex.PW8/A and PW8/B and seizure memo Ex.PW8/C vide which three pulandas given to him after medical examination of prosecutrix were seized.
5. On the basis of the incriminating evidence against the accused, his statement was recorded u/s. 313 CrPC, wherein he denied all the prosecution evidence against him and took the defence that PW2 and his wife were not agreeing for marriage of prosecutrix with him, mother of prosecutrix was not alive and her father used to drink heavily. PW2 and his wife did not use to like her and wanted to kill her, due to this reason prosecutrix left her house without informing PW2. Accused did not lead any evidence in defence.
6. Heard arguments of Sh. Ashok Kumar, Ld. APP for State and Sh. Dwarka Prasad, Ld. Defence counsel for accused. Perused the case file.
FIR No. 583/10 State Vs. James Raja page 2 of page 6
7. The Ld. APP submitted that prosecutrix was minor and was not in a position to give her consent. It is stated that prosecutrix while deposing as PW1 has stated that accused took him to Pouri Garhwal and there they stayed for two months in a rented house. It is stated that from the statement of PW6, it stands proved that accused had married with prosecutrix and from the marriage certificate intention of accused that he wanted to marry prosecutrix stands established. It is stated that prosecution has been able to prove its case against the accused.
8. Sh. Dwarka Prasad, Ld. Defence counsel for accused submitted that prosecutrix was on the verge of majority and she at her own went to the accused and she married with accused with her own freewill. It is stated that accused and prosecutrix are both happily married and residing together.
9. Prosecutrix while deposing as PW1 has stated that her mother has expired when she was only 2 to 2 ½ years old. She used to reside with her grandfather. After death of her grandfather she started residing with her father. Her father used to consume liquor heavily and used to quarrel with him and also used to abuse her. Her uncleaunt(ChachaChachi) used to beat her and used to ask her to go away and also threatened that they will kill her father. On 23.11.10 she at her own went to accused. Accused was known to her as she used to meet him in her aunt's (Bua's) house. They went to Pouri Garhwal and stayed there for 2 months in a rented house. Thereafter they returned to Delhi. On 15.4.11 she and accused were produced by elder brother of accused before the police. Accused was arrested and she was sent to Nari Niketan. She was produced before LBS Hospital for her medical examination, there she refused to get her medical examination done. She was produced before Ld. M.M for recording her statement and there her statement was recorded. She married with accused FIR No. 583/10 State Vs. James Raja page 3 of page 6 on 30.3.11 and at present she is happily married with him. Her date of birth is 21.3.93. During cross by Ld. APP she denied the suggestion that her date of birth is 21.3.94. She stated that her actual date of birth is 21.3.93 and at the time of her admission in school her wrong date of birth was mentioned as 21.3.94. She denied the suggestion that accused had taken her after giving her enticement.
10. Ex.PW1/A is the statement of prosecutrix recorded u/s. 164 CrPC. In this statement she has stated similar facts as deposed by her before this Court as PW1.
11. PW2 Sh. Satish Kumar is the complainant. He deposed that he alongwith his family was residing with prosecutrix and her father. On 23.11.10 at about 8 a.m his niece had gone for taking tuition from Rosy Computer College, Pandav Nagar but she did not return back. He and his family members searched for her but could not find her. Next day he went to PS to lodge the missing report of his niece. Gulshan, who was friend of prosecutrix told the police that she was having affair with accused. Accused is real brother of his Jija (brotherinlaw) namely Joseph Naveen. On 15.4.11 Joseph Naveen produced prosecutrix and accused in PS.
12. PW4 Naveen Joseph is the elder brother of accused and he supported statement of complainant PW2. On 15.4.11 he produced accused and prosecutrix in PS Mandawali.
13. Ex.PW6/A is the marriage certificate of accused and prosecutrix, as per which they both married on 30.3.11 in Arya Samaj Vedic Marriage Mandal, Jamuna Bazar, Delhi. As per prosecutrix she is presently residing happily with the accused as his wife.
FIR No. 583/10 State Vs. James Raja page 4 of page 6
14. There are two main points required to be considered by this Court, firstly if PW1 was minor on the date of incident, secondly if she was taken or enticed away by accused from her lawful guardian. Ex.PW3/C is the admission record of RSKV School, Patparganj, where date of birth of prosecutrix is mentioned as 21.3.94. The date of incident is 23.11.10. Prosecutrix while deposing as PW1 has stated that her date of birth is 21.3.93. During her crossexamination by Ld. APP she has specifically stated that her actual date of birth is 21.3.93 and at the time of her admission in school her date of birth was mentioned as 21.3.94. No birth certificate issued by Municipal Corporation of Delhi has been filed on record. The law is settled that in case of dispute regarding the date of birth, in case no conclusive document is there, the statements of parents of the prosecutrix regarding her date of birth needs to be considered. But in this case as per prosecutrix her mother has died and her father has not been examined as a witness.
15. If age of the prosecutrix is taken as 21.3.94, on the date of incident she was aged 16 years and 8 months. In case her date of birth is taken as 21.3.93, at the time of this incident prosecutrix was aged 17 years and 8 months. The law is settled that if two views are possible, the view favouring accused should be taken. In 2006 (1) RCR (Criminal) 653, Hon'ble Delhi High Court has observed that if a girl of 17 years accompanies a boy of her own volition, offence of kidnapping is not made out as the girl is on the verge of majority and has reached the age of discretion. In this case, prosecutrix being around 17 years of age had accompanied accused on her own volition without any kind of enticement or inducement or force from any one. It was observed by Hon'ble High Court that there was thus no taking away or inducement of minor out of keeping from lawful guardian, hence essential ingredients of offence of kidnapping are missing. Reliance is also placed upon S. Varadarajan Vs. FIR No. 583/10 State Vs. James Raja page 5 of page 6 State of Madras, AIR 1965 Supreme Court 942.
16. "Taking" or "enticing" are the two important ingredients of the offence of kidnapping defined u/s. 361 IPC. Both these ingredients are missing in this case as prosecutrix has specifically stated that on 23.11.10 at her own she went to accused and they both went to Pouri Garhwal and stayed there for two months in a rented house. Under the facts of this case, since prosecutrix was on the verge of majority and she accompanied accused on her own volition, it cannot be said that she went away with accused due to enticement or inducement from anyone.
17. Ex.PW6/A is the marriage certificate of the accused issued by Arya Samaj Vedic Marriage Mandal. Prosecutrix has also stated that at present she is living happily with accused.
18. In view of the aforesaid reasons it is held that prosecution has failed to prove the necessary ingredients of the offence of kidnapping punishable u/s. 363 IPC. Since the offence u/s. 363 IPC goes, the second offence i.e. u/s. 366 IPC with which accused is charged also goes. Accused is accordingly acquitted from the offences punishable u/s. 363/366 IPC.
File be consigned to record room.
ANNOUNCED IN OPEN COURT ON 09.04.2012 (SANJAY GARG) ADDL. SESSIONS JUDGE(EAST) I KARKARDOOMA COURTS : DELHI FIR No. 583/10 State Vs. James Raja page 6 of page 6