Delhi District Court
The State vs Anil on 21 July, 2014
D.O.D 21.7.2014 FIR no. 170/12
P.S Vijay Vihar
u/s 363/366 IPC.
IN THE COURT OF SH RAJESH KUMAR GOEL:
ADDITIONAL SESSION JUDGE -5 (NORTH),
ROHINI , DELHI
SESSION CASE NO. : 60/13
UID NO . : 02404R0196022012
FIR no : 170/12
P. S : Vijay Vihar
u/s : 363/366 IPC.
The State versus Anil
S/O Raman Lal
R/O K-117, Vijay Vihar, Ph-1, Delhi
Date of committal to session court : 11.02.2013
Date of argument : 21.07.2014
Date of order : 21.07.2014
JUDGMENT
1. Facts and circumstances giving rise to the present case, as per the story of the prosecution are that on 17.5.2012, complainant Kallo made a complaint to the police alleging that on 16.5.2012 at about 2:00 pm her daughter namely 'S' (identity witheld) went missing and she had gone without disclosing to anyone of her family members. The said information was reduced into DD no.11 A at P.S Vijay Vihar. On the basis of said DD, present FIR was SC No. 60/13 State vs Anil (Page 1 of 16 ) D.O.D 21.7.2014 FIR no. 170/12 P.S Vijay Vihar u/s 363/366 IPC.
registered u/s 363 IPC. According to the prosecution, during the enquiry and investigation it was revealed that accused Anil Kumar had kidnapped the girl 'S' from the lawful guardianship of her parents without their consent. It was also alleged that she was kidnapped with intention to compel her to get married with the accused. Accordingly, section 366 IPC was added.
2. On 24.5.2012, prosecutrix 'S' is shown to have been recovered from the possession of the accused from near Avantika Park, sector 1, Rohini. Recovery memo was prepared. Accused was apprehended . Prosecutrix 'S' was got medically examined at BSA Hospital where she refused to go for internal medical examination. Statement of the prosecutrix 'S' was got recorded u/s 164 CrPC before ld MM where she has not supported the story of the prosecution. After completion of investigation, accused was chargesheeted for offences u/s 363/366 IPC.
SC No. 60/13 State vs Anil (Page 2 of 16 )
D.O.D 21.7.2014 FIR no. 170/12
P.S Vijay Vihar
u/s 363/366 IPC.
3. Vide order dated 24.07.2012, Ld MM took the cognizance of the offences and subsequently, since the offence u/s 366 IPC was exclusively triable by the court of sessions, therefore , vide order dated 11.02.2013 , case was committed to the court of sessions.
4. Vide order dated 4.4.2013. Ld Predecessor of this court decided the charges and accordingly, charges for the offences u/s 363/366 IPC were framed against the accused to which he pleaded not guilty and claimed to be tried.
5. In order to prove its case, prosecution has examined five witnesses.
6. PW1 HC Parminder is the duty officer who proved the DD no.11 A dt.17.5.2012 ExPW1/A regarding missing of girl 'S' and registration of FIR ExPW1/B .
7. PW2 Kallo is the complainant and mother of SC No. 60/13 State vs Anil (Page 3 of 16 ) D.O.D 21.7.2014 FIR no. 170/12 P.S Vijay Vihar u/s 363/366 IPC.
the prosecutrix 'S'. She deposed that she made a complaint to the police regarding missing of her daughter on the basis of which present FIR was registered. She has also been shown as witness to the recovery of prosecutrix 'S' from the possession of the accused.
8. PW3 'S' is the prosecutrix herself. She gave up the case of the prosecution and she was cross examined by the ld Chief prosecutor for the state.
9. PW4 Ms Meenu Kaushik, ld MM has proved the recording of statement of prosecutrix 'S' u/s 164 CrPC.
10. PW5 ASI Pradeep Kumar is the IO who carried out the routine investigation.
11. Here it is pertinent to mention that two documents i.e MLC and Date of birth certificate of prosecutrix 'S' were given exhibit marks as ExPW5/D SC No. 60/13 State vs Anil (Page 4 of 16 ) D.O.D 21.7.2014 FIR no. 170/12 P.S Vijay Vihar u/s 363/366 IPC.
and ExPW2/B respectively during the examination of prosecution witnesses. Accused has not disputed the same. Rather he gave a separate statement admitting these two documents.
12. Thereafter, prosecution evidence was closed and statement of accused u/s 313 CrPC was recorded. Accused denied the allegations made against him. He did not opt to lead any evidence in his defence .
13. I have heard the ld Chief Prosecutor for the state and the accused . I have also perused the record very carefully.
14. Accused Anil is facing trial for offences u/s 363/366 IPC on the allegations that he enticed and had taken minor 'S' aged below 18 years from the lawful guardianship of her parents and he kidnapped said girl in deceitful manner with intend to compel her to marry with him against her will.
SC No. 60/13 State vs Anil (Page 5 of 16 )
D.O.D 21.7.2014 FIR no. 170/12
P.S Vijay Vihar
u/s 363/366 IPC.
15. As far as section 366 IPC is concerned it
says that " in order to prove the charge under
section 366 I.P Code against the accused the
following ingredients have to be established (1) that the accused induced the complainant to go from any place ;(2) that such inducement was by deceitful means;(3) that such kidnapping or abduction of the complainant took place to compel her to marry or with intent that she may be seduced to illicit intercourse ;and (4) that the accused knew it to be likely that the complainant may be seduced to illicit intercourse as a result of her kidnapping or abduction" .
16. In the present case, there is no evidence that any deceitful means were used by the accused to seduce prosecutrix to sexual intercourse. Prosecution has also not been able to establish that the kidnapping took place with such an intention for seducing the minor girl. Rather she stated that she did not have any physical relations with the accused. It is also missing that accused ever compelled SC No. 60/13 State vs Anil (Page 6 of 16 ) D.O.D 21.7.2014 FIR no. 170/12 P.S Vijay Vihar u/s 363/366 IPC.
prosecutrix to marry him.
17. PW3 prosecutrix 'S' who is the victim has categorically stated that she had gone to Agra with the accused voluntarily and remained there for about one week . They did not have any physical relation. She was cross examined by the ld Chief Prosecutor for the state. During her cross examination also she denied the suggestion that accused had enticed her for marrying or that accused kidnapped her to Agra for the aforesaid purpose. There is no evidence to show that accused ever compelled 'S' to marry him. In these circumstances, the ingredients of section 366 IPC are not attracted.
18. Now we advert to the section 363 IPC. Section 361 , IPC reads :
"361. Kidnapping from lawful guardianship. - Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen 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 SC No. 60/13 State vs Anil (Page 7 of 16 ) D.O.D 21.7.2014 FIR no. 170/12 P.S Vijay Vihar u/s 363/366 IPC.
kidnap such minor or person from lawful guardianship.
Explanation. - The words 'lawful guardian' in this section include any person lawfully entrusted with the care of custody of such minor or other person.
Exception- This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to lawful custody of such child, unless such act is committed for an immoral or unlawful purpose."
19. The object of this section seems as much to protect the minor children from being seduced for improper purposes as to protect the rights and privileges of guardians having the lawful charge or custody of their minor wards. The gravamen of this offence lies in the taking or enticing of a minor under the ages 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 the lawful guardian of such minor" in Section 361, are significant. The use of the word "Keeping" in the context connotes the idea of charge, protection, maintenance and control; further the guardian's charge and control appears to be compatible with the independence of action and SC No. 60/13 State vs Anil (Page 8 of 16 ) D.O.D 21.7.2014 FIR no. 170/12 P.S Vijay Vihar u/s 363/366 IPC.
movement in the minor, the guardian's protection and control of the minor being available, whenever necessity arises.
20. In the present case, it is not in dispute that on the date of occurrence i.e 16.5.2012, prosecutrix 'S' was minor and her date of birth is 7.6.1994 but she was minor by 22 days only. During the statement recorded u/s 313 CrPC, accused replied that he never compelled or asked the prosecutrix 'S' to come with him rather it was her who compelled him to accompany her. He further replied that he had gone with prosecutrix 'S' under her pressure and he never called her. He also replied that on the date of incident he has not visited the house of the prosecutrix 'S'.
21. In the background of the aforesaid explanation given by the accused, it is to be seen if ingredients of section 363 IPC are attracted or not. In my considered opinion answer is 'NO'. Although, it is not denied by the accused that on the date when the SC No. 60/13 State vs Anil (Page 9 of 16 ) D.O.D 21.7.2014 FIR no. 170/12 P.S Vijay Vihar u/s 363/366 IPC.
incident took place prosecutrix 'S' was minor but that itself is not sufficient to reach at a conclusion that accused had enticed or taken away the prosecutrix 'S' from lawful guardianship of her parents.
22. PW2 Kallo is the mother of the prosecutrix 'S' .
She has nowhere stated that she had seen the accused taking her daughter alongwith him. In the first information given to the police she had not mentioned the name of the accused and it was her subsequent statement to the police wherein she raised suspicion over accused. PW2 is not the eye witness. She has also not testified that accused was responsible for creating circumstances and grounds due to which prosecutrix 'S' ran away from her house. She has said nothing in this regard.
23. In these circumstances the testimony of PW3 who is the prosecutrix 'S' herself remains. Prosecutrix 'S' appeared in the witness box and she was examined as PW3. She has categorically stated SC No. 60/13 State vs Anil (Page 10 of 16 ) D.O.D 21.7.2014 FIR no. 170/12 P.S Vijay Vihar u/s 363/366 IPC.
that she was in love with the accused and she has gone with the accused voluntarily and without any pressure on the part of the accused. She has also stated that it was not the accused who had taken her but she had gone with him which corroborated the plausible explanation given by the accused. She was cross examined by the ld Chief Prosecutor for the state but even during her cross examination she denied the suggestion that she has been won over by the accused and under his pressure she is resiling from her previous statement. Even during her statement recorded u/s 164 CrPC ExPW4/B, she stated that she had gone with the accused as per her own free will .
24. There is no evidence which could show that accused ever induced prosecutrix 'S' or threatened her or created a ground to take her with him. In these circumstances, it is difficult to hold that accused was instrumental in taking or kidnapping the prosecutrix 'S' from the lawful guardianship of her parents.
SC No. 60/13 State vs Anil (Page 11 of 16 )
D.O.D 21.7.2014 FIR no. 170/12
P.S Vijay Vihar
u/s 363/366 IPC.
25. In a case Rohit Kaushal and Anr. Vs.
State and ors. W.P(Crl) 891/2009, decided on 09.2.2010(DHC), it was observed that :
" The FIR was registered under Section 363 of IPC on a complaint made by the father of petitioner No. 2. In order to constitute offence punishable under Section 363 of IPC, there has to be taking or enticing of a minor from the lawful guardianship of her parents/guardian. If the minor, of her own, abandons the guardianship of her parents and joins a boy, without any role having been played by the boy in her abandoning the guardianship of her parents and without her having been subjected to any kind of pressure, inducement, etc. and without any offer or promise from the accused, no offence punishable under Section 363 of IPC will be made out when the girl is aged more than 16 years and is mature enough to understand what she is doing. Of course, if the accused lays a foundation by inducement, allurement etc. and that influences the minor or weighs with her in leaving her guardians custody and keeping and going with the accused then it is difficult to accept that the minor had voluntarily come to the accused.
26. In State of Karnataka v. Sureshbabu 1994 Crl. L.J. 1216 (1), it was found that the girl went with the accused voluntarily. It was held by the Hon'ble Supreme Court that the requirement of Section 366 of IPC is that taking or enticing away SC No. 60/13 State vs Anil (Page 12 of 16 ) D.O.D 21.7.2014 FIR no. 170/12 P.S Vijay Vihar u/s 363/366 IPC.
a minor out of the keeping of the lawful guardianship was an essential ingredient of the offence of kidnapping. It was held that in such a case, it is difficult to held that the accused had taken her away from the keeping of her lawful guardian and something more has to be shown in a case of this nature, like inducement.
27. In Bala Saheb v. State of Maharashtra 1994 CrLJ 3044, it was found that the prosecutrix accompanied the appellant/accused from her village and stayed with him for two to three days. It was held that these circumstances clearly show that offence under Section 363 or 366 of I.P.C. was not made out.
28. In Rajesh @ Magan ....vs The State ... W.P( Crl) 891/2009, Decided on : 09.02.2010 (DHC) , it was observed " A perusal of Section 363 IPC would show that an offence is made out under Section 363 IPC only if a girl below 18 years of age is enticed out of keeping of the lawful guardian or parents. In the present case evidence shows that girl had left the house of her parent of her own. She was already in love with the boy.
She had been exchanging love letters and thereafter on finding a chance she had accompanied the boy and went to Haridwar, Rishikesh and other places. However, it is also proved that boy did not mis- use this opportunity and did not have sex with her and she came back after visiting these places. The trial court did conclude that the prosecutrix was not under any physical or mental pressure at any point of time and she had been going to different places of her own. I therefore find that it was not a case of enticing of the SC No. 60/13 State vs Anil (Page 13 of 16 ) D.O.D 21.7.2014 FIR no. 170/12 P.S Vijay Vihar u/s 363/366 IPC.
prosecutrix but the prosecutrix of her own left house of her parents and accompanied the boy, so, no offence under Section 363 IPC was made out. The accused is acquitted of the offence under Section 363 IPC".
29. In S. Varadarajan Vs. :State of Madras AIR1965 SC 942, it was held that ". ..It must, however, be borne in mind that there is a distinction between "taking : and allowing a minor to accompany a person. The two expression are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstance can the two be regarded as meaning the same thing for the purposes of s. 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can 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. In our opinion 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 SC No. 60/13 State vs Anil (Page 14 of 16 ) D.O.D 21.7.2014 FIR no. 170/12 P.S Vijay Vihar u/s 363/366 IPC.
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. That part, in our opinion, 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" ".
30. In the present case at the time when the incident took place prosecutrix 'S' was aged about 17 years 11 months and 8 days. She was on the verge of attaining majority and she was capable of understanding what she was doing, though in the legal sense she was minor. Prosecution has failed to bring on record to show that accused ever induced prosecutrix 'S' to leave her house or laid the foundation to allure her . Rather it has come on record that prosecutrix 'S' herself had abandoned the lawful guardianship of her parents . That being so accused cannot be held responsible for the same.
SC No. 60/13 State vs Anil (Page 15 of 16 )
D.O.D 21.7.2014 FIR no. 170/12
P.S Vijay Vihar
u/s 363/366 IPC.
31. In the light of my aforesaid discussion, and in view of the law laid down as discussed herein above, this court is of the view that prosecution has failed to prove the case for the offences u/s 363/366 IPC. Accordingly, accused Anil stands acquitted for offences u/s 363 /366 IPC.
32. File be consigned to Record Room after compliance of section 437(A) CrPC.
Announced in the open (Rajesh Kumar Goel) Court today i.e 21.7.2014 ASJ-5, North Rohini Court SC No. 60/13 State vs Anil (Page 16 of 16 )