Delhi District Court
State vs . Vikas @ Akash, on 3 December, 2019
IN THE COURT OF AJAY GOEL
ADDL. SESSIONS JUDGE/SPECIAL JUDGE (NDPS),
DWARKA COURTS, NEW DELHI.
Sessions Case No. 441531/2016
State Vs. Vikas @ Akash,
S/o Sh. Diwan Chand,
R/o W-68/83, J. J. Colony,
Pankha Road, Uttam Nagar
New Delhi.
FIR No. : 330/13
Police : Dabri
Station
Under : 363/366 IPC
Sections
Date of Filing of Charge Sheet : 06.08.2016
Date of Committal of case to sessions : 09.12.2016
Date of Assignment of case to this
Court at the stage of PE : 31.05.2017
Date of Arguments : 27.11.2019
Date of Judgment : 03.12.2019
JUDGMENT:
Case of Prosecution:
1. The case of the prosecution is that on 20.06.2013 at about 12 noon, accused kidnapped a Sessions Case No. 441531/2016 State Vs. Vikas @ Akash. Page No. 1/17 minor girl aged about 14 ½ years, daughter of complainant Sh. Baleshwar. It is the case of prosecution that on 21.06.2013 complainant Sh.
Baleshwar went to PS Dabri and gave his statement about kidnapping of his daughter and the same was recorded by ASI Ombir Singh. Thereafter, ASI Ombir Singh made his endorsement on the statement of the complainant and presented the same before ASI Jagdish.
2. Thereafter, on 21.06.2013, ASI Jagdish recorded FIR No. 330/13 at about 12.10 am and made his endorsement on the rukka.
3. After FIR, the investigation of the present case was assigned to SI Raghubir Singh, who along with Ct. Deepa and complainant Sh. Baleshwar reached Dhaula Kuan Bus Stand at about 6.30 pm as they had prior information from local inquiries that after elopement, they had gone to Rajasthan and they will be returning back.
Sessions Case No. 441531/2016 State Vs. Vikas @ Akash. Page No. 2/17
4. It is the case of prosecution that after 15-20 minutes accused and prosecutrix alighted from a bus at Dhaula Kuan and after enquiries, accused was arrested vide arrest memo by SI Raghubir Singh. Thereafter, his personal search was conducted and the prosecutrix was got medically examined at DDU hospital vide MLC.
5. Thereafter, on 22.06.2013 the statement of prosecutrix was got recorded u/s 164 Cr.P.C. which was recorded by Ld. M.M.
6. Thereafter, on 24.06.2013 the prosecutrix was produced before CWC where her counseling was conducted. Thereafter, record pertaining to date of birth of accused was collected from Govt. Boys Sr. Secondary School, A Block Janakpuri.
7. The certificate regarding the date of birth of the prosecutrix issued by Delhi Cantonment Board was collected and the same was verified by SI Sanjay Kumar. The date of birth of the prosecutrix is Sessions Case No. 441531/2016 State Vs. Vikas @ Akash. Page No. 3/17 05.12.1998 as per the birth certificate.
8. After completion of investigation, the charge sheet was filed.
9. Since offence U/s 366 IPC is exclusively triable by the Court of sessions, hence after supplying the documents, Ld. MM committed the case to the Court of sessions.
Charge against the accused:
10. On 31.05.2017, after hearing arguments on charge, charge was framed against accused Vikas under Section 363/366 IPC to which they pleaded not guilty and claimed trial.
Witnesses examined :
11. Prosecution in support of its case examined following witnesses who are as follows:-
PW1 is Sh. Baleshwar. He is complainant in the present case and he has deposed regarding missing Sessions Case No. 441531/2016 State Vs. Vikas @ Akash. Page No. 4/17 of her daughter dated about 14 ½ years from his house since 12.30 noon and he reported the matter to police. He proved his statement as Ex. PW-1/A. PW2 is ASI Jagdish. This witness was examined as a Duty Officer in this case and he proved the copy of FIR as Ex. PW-2/A and his endorsement on rukka as Ex. PW-2/B. PW3 is Ms. Preeti. She is daughter of complainant. She resiled from her statement and thus she was cross-examined by Ld. APP for the state as she did not support the case of prosecution. PW4 is Ct. Deepa. He deposed that he joined the investigation of present case with IO SI Raghubir. He deposed that during investigation, accused was arrested by IO vide arrest memo Ex. PW-4/A and his personal search as Ex. PW-4/B. PW5 is Sh. Vipin Kumar, TGT, Govt. Boys Sr. Secondary School. This witness brought the school record pertaining to date of birth of Vikas. The Sessions Case No. 441531/2016 State Vs. Vikas @ Akash. Page No. 5/17 authority letter was proved as Ex. PW-5/A and attested copy of relevant document of date of birth of Vikas as Ex. PW-5/B. PW6 is SI Raghuveer. He is IO of the case and he has deposed regarding investigation done by him. He deposed that ASI Ombir singh recoded statement of complainant on 21.06.2013 and prepared rukka Ex. PW-6/A, the MLC of prosecutrix was proved as Ex. PW-6/B and her counseling report as Ex. PW-6/C. PW7 is SI Gajender. He deposed that on 01.11.2013, the case file of the present case was assigned to him for further investigation and same day, he examined the victim and recoded her statement U/s 161 Cr. P. C. PW8 is SI Sanjay Kumar. He deposed that the case file of the present case was assigned to him for investigation, the birth certificate of victim was proved as Ex. PW-1/A, his letter to Sub-Registrar, Birth and Death, Delhi Cantonment Board as Ex. PW- Sessions Case No. 441531/2016 State Vs. Vikas @ Akash. Page No. 6/17
8/A.
12. Thereafter, Prosecution Evidence was closed vide order dated 19.11.2019.
13. The statements of the accused U/s 313 Cr. P.C. were recorded on 22.11.2019 whereby all the incriminating evidence was put to him to which he denied the case of prosecution and the accused pleaded innocence. He stated that he had been falsely implicated in the present case. During recording of statement of accused, he did not wish to lead DE.
14. I have heard the Addl. PP for the State and the counsel for the accused. The material on record has also been perused.
15. The prosecution of the accused persons had been launched on the statement of the complainant. It is stated by Ld. APP for State that prosecution by producing several reliable witnesses in witness box has succeeded in proving the guilt of accused beyond Sessions Case No. 441531/2016 State Vs. Vikas @ Akash. Page No. 7/17 reasonable doubt. It is argued that prosecution witnesses including complainant have duly supported the case of prosecution. There is no contradiction in their deposition. The accused was arrested with prosecutrix. No evidence in his defence has been produced by accused to disprove the case of prosecution. Thus there is sufficient material and evidence available on record against the accused to convict him.
16. On the other hand, Ld. Counsel for accused vehemently argued that the accused is innocent. It is argued by him that the evidence of complainant is full of omissions and improvements. The prosecutrix has resiled from her statement. In view of same, her evidence has lost the credibility and cannot be relied upon to give finding of guilt against the accused. It is argued that he has been falsely implicated in the present case.
Sessions Case No. 441531/2016 State Vs. Vikas @ Akash. Page No. 8/17 FINDINGS:
17. Before proceeding further, this court would like to discuss the charged sections in the present case which are reproduced herein below:
Section 363. 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.
Section 366. Kidnapping, abducting or inducing woman to compel her marriage, etc. - Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any Sessions Case No. 441531/2016 State Vs. Vikas @ Akash. Page No. 9/17 person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; [and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid].
18. The perusal of record shows that on 20.06.2013 at about 12 noon, accused Vikas kidnapped a minor Sessions Case No. 441531/2016 State Vs. Vikas @ Akash. Page No. 10/17 girl aged about 14 ½ years, daughter of complainant Sh. Baleshwar. It has come on record that on 21.06.2013 complainant Sh. Baleshwar went to PS Dabri and gave his statement about kidnapping of his daughter and the same was recorded by ASI Ombir Singh who had presented the same before ASI Jagdish. It has also come on record that on 21.06.2013, ASI Jagdish recorded FIR No. 330/13 at about 12.10 am and after FIR, the investigation of the present case was assigned to SI Raghubir Singh, who along with Ct. Deepa and complainant Sh. Baleshwar reached Dhaula Kuan Bus Stand at about 6.30 pm. It has also come on record that after 15-20 minutes accused and prosecutrix alighted from a bus at Dhaula Kuan and after enquiries, accused was arrested by SI Raghubir Singh. Thereafter, his personal search was conducted and the prosecutrix was got medically examined at DDU hospital vide MLC.
Sessions Case No. 441531/2016 State Vs. Vikas @ Akash. Page No. 11/17
19. The case of the prosecution hinged on the testimony of the prosecutrix, complainant i.e. father of the girl. Prosecutrix was examined as PW3 and complainant was examined as PW1. PW3 Ms. Preeti, prosecutrix, in her testimony has deposed that on 20.06.2013, she had gone to Janakpuri for watching movie with her friends and returned to her home on the same day. She deposed that she does not know accused Vikas and that her statement was not recorded by police. She resiled from her previous statement given to the police and thus with the permission of court, she was cross-examined by Ld. APP for the state. It has to be kept in mind that two sections i.e. 363 and 366 of IPC are attracted and one has to see as to what was the age of the prosecutrix on the date of taking away her by accused without the consent of guardian. Secondly, whether she was taken away for the purpose of forcible marriage against her wishes and for forced sexual intercourse. Sessions Case No. 441531/2016 State Vs. Vikas @ Akash. Page No. 12/17 In both the cases, consent of minor is immaterial. The benefit as per S. Vardharajan case can be given between the age of 16 to 18 years of age but not below that. There may be cases where the taking away may not be for the purpose of marriage and sexual intercourse. In the present case, the ingredients of section 363 IPC have not been proved because girl herself has demolished the case of prosecution by stating that there was no sexual intercourse with her. Though in the statement U/s 164 Cr. P. C. she has stated that she has married in one Mandir but in her statement before the court, she has not at all stated so. Rather she stated that he had gone to Janak Puri for watching movie and returned on same day to her home. She denied the suggestion that accused had taken her to Sai Mandir and accused had filled Sindur in her Maang. She also rather stated in her statement U/s 164 Cr. P. C. Ex. PW-3/A that no physical relation was established Sessions Case No. 441531/2016 State Vs. Vikas @ Akash. Page No. 13/17 between her and accused. She rather denied the suggestion that accused used to say her that he loves her and wants to marry her. It is apparent that there is no proof of sexual assault. It is further apparent that there are no allegation of solemnization of marriage between them. Not a single document has been placed on record in this regard by prosecution and complainant. So ingredients of section 366 IPC are not made out but story is different qua Section 363 IPC which is based on other documents.
20. As far as deposition of PW-1 Baleshwar is concerned, he deposed that her daughter went missing from the house since 12.30 noon on 20.06.2013 and he made search for her daughter at his level but could not trace her and thus in the night, he went to PS-Dabri and reported the matter to police. He further deposed that one of friend of her daughter told him that his daughter was having Sessions Case No. 441531/2016 State Vs. Vikas @ Akash. Page No. 14/17 talking terms with Vikas and he informed the same to police. He further deposed that on 21.06.2013, he alongwith police had gone to Dhaula Kuan at about 06.30 p.m. and her daughter and accused Vikas @ Aakash were found at the bus stop and accused was apprehended by police. PW-4 Ct. Deepa and PW-6 SI Raghuveer had also testified this fact in their examination in chief. From the deposition of PW-1 complainant and other police witnesses including IO, it is clear that accused had taken away the daughter of complainant without the consent of complainant lawful guardian of prosecutrix. At the time of arrest of accused, daughter of complainant was found with accused at bus stop which is sufficient to drawn an inference that accused had kidnapped the prosecutrix. Date of birth of daughter of complainant has been proved on record. The consent of daughter of complainant has become immaterial being minor. The date of incident is 20.06.2013 and when PW-3 Sessions Case No. 441531/2016 State Vs. Vikas @ Akash. Page No. 15/17 appeared as witness on 29.01.2018 to depose, she told her age as 19 years. So meaning thereby on the date of incident, her age was somewhere 14 years and accused cannot escape from law on this legal position. So ingredients of section 363 IPC are duly proved.
21. In view of the above discussion, the prosecution has not been able to prove its case beyond reasonable doubt against accused Vikas for the offence U/s 366 IPC and accordingly, he is acquitted for the charges U/s 366 IPC.
22. However, there is sufficient evidence against accused Vikas qua Section 363 IPC and ingredients of same are duly proved on record. No evidence in his defence has been produced by accused to disprove the case of prosecution and thus no dent could be created to the case of prosecution. Accordingly, accused Vikas is convicted for the offence U/s 363 Sessions Case No. 441531/2016 State Vs. Vikas @ Akash. Page No. 16/17 IPC. The case property is confiscated to the State and in case, no appeal is filed within the prescribed time, the same may be disposed of as per rules. Copy of this judgment be given to convict free of cost.
23. Be put up for arguments on the point of sentence after lunch session today i.e. on Digitally 03.12.2019. signed by AJAY AJAY GOEL Date:
GOEL 2019.12.10
13:28:36
+0530
Pronounced in the open court. (AJAY GOEL)
Dated: 03.12.2019 ASJ/Special Judge (NDPS)
Dwarka Courts/New Delhi.
Sessions Case No. 441531/2016 State Vs. Vikas @ Akash. Page No. 17/17