Delhi District Court
State vs . Sunny on 16 October, 2014
IN THE COURT OF MS. NEHA: METROPOLITAN
MAGISTRATE03 : (SOUTH EAST) DELHI
STATE Vs. Sunny
FIR No: 246/06
P. S. H. N. Din
Date of Institution of Case : 08.06.2007
Date on which case reserved : 06.08.2014
for Judgment
Date of Judgment : 16.10.2014
JUDGEMENT :
a) Date of offence : 07.04.2006 b) Offence complained of : 363 IPC c) Name of complainant : Sh. Tilak Raj d) Name of accused, : Sunny his parentage and residence S/o Late Kanahiya Lal. R/o House No. 5, Jangpura Road, Bhogal, New Delhi. e) Plea of accused : Not guilty g) Final order : Acquitted Counsels for the Parties: Sh. Pradeep Kumar, Ld. APP for the State.
Sh. Ravindra Narayan, Ld. Counsel for the accused. FIR no. 246/06 State Vs. Sunny PS Hazrat Nizamuddin 1 of 12 BRIEF FACTS AND REASONS FOR DECISION:
The case of the prosecution in brief is that on 07.04.2006 at 11.30 PM from H. No. 18 Jungpua Road, Bhogal accused Sunny had taken away one girl/minor named Sonam without the consent of her parent or lawful guardian from their lawful custody. Sh. Tilak Raj, father of minor Sonam filed complaint regarding the missing of girl. Accordingly, FIR No. 246 of 2006 U/s 363, the Indian Penal Code 1860 (hereinafter called 'IPC') was registered at PS Hazrat Nizamuddin, New Delhi. Thereafter minor Sonam was recovered on 18.05.2006 as she alongwith accused Sunny came to PP Jungpura. Accused was arrested in the present case.
2. After the completion of the investigation, charge sheet for offence u/s 363/366A IPC was filed against accused Sunny. Cognizance for the offence under section 363 IPC was taken and accused was summoned to face trial. Copy was supplied to the accused. After hearing the parties, charge for offence punishable u/s 363 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
3. The prosecution has examined seven witnesses to prove its FIR no. 246/06 State Vs. Sunny PS Hazrat Nizamuddin 2 of 12 case.
4. PW1 Sh. Tilak Raj is the complainant of the case.
5. PW2 HC Chacko is a formal witness/duty Officer. He registered the present FIR on the basis of rukka. The copy of FIR is Ex PW2/A and his endorsement on rukka is Ex PW2/B.
6. PW3 HC Anjani Kumar Singh is the witness who joined proceedings with the IO SI Jitender Singh. PW3 has deposed that on intervening night of 18/19.05.2006 he was posted at PP Jangpura as Ct. On that day at about 8.30 pm he along with IO went to Bhogal in the investigation of present case. At about 08.45 pm a telephonic message was received from PP Jangpura that accused as well as victim were present in PP Jangpura. They went to PP Jangpura. IO called WHC Renu Bala from District Control Room. IO also called the father of victim in PP Jangpura. Accused was arrested by the IO vide arrest memo Ex. PW1/C. Personal search of the accused was conducted vide memo Ex. PW 1/D. The victim Sonam was taken into police possession vide memo Ex.PW1/B.
7. PW4 Ms. Sonam is the victim/minor who was allegedly kidnapped.
FIR no. 246/06 State Vs. Sunny PS Hazrat Nizamuddin 3 of 12
8. PW5 W/Ct. Asha is the witness who joined proceedings with W/SI Saroj Bala during medical examination of minor Sonam.
9. PW6 SI Jitender Singh is the IO of the case who arrested the accused and prepared recovery memo of the minor. PW 6 has deposed that on 18.05.2006, he was posted at PS HND. On that day, while he was at PP Jungpura, accused Sunny alongwith Sonam came to PP Jungpura in the evening time. He called the father of Sonam to PP Jangpura. Thereafter, Sh. Tilak Raj came to PP Jangpura. He informed the said fact to SHO PS HND and ASI Saroj Bala came to PP Jangpura. Thereafter, she got conducted the medical examination of accused and Sonam. They came to PP Jangpura at about 11:30 pm. The accused was arrested by him at about 12:15 am i.e on 19.05.2006 vide arrest memo Ex 6/C. Thereafter, the personal search of accused was got conducted by him. The accused was produced in the court. Thereafter, the investigation was handed over to SI Saroj Bala.
10. PW7 WSI Saroj Bala is the witness who got the minor medically examined and got recorded her statement u/s 164 CrPC. PW7 has deposed that on 18.05.2006, she was posted at PS FIR no. 246/06 State Vs. Sunny PS Hazrat Nizamuddin 4 of 12 Nizamuddin and on that day the investigation of the case was marked to her. She took accused Sunny to AIIMS where she got medical examination of accused done by the doctors. After his medical examination, the doctors had handed over one pullanda which was sealed with the Forensic Medical seal, AIIMS which she had taken vide memo Ex PW7/A and same were deposited in the malkhana.
11. She has further deposed that she had also got conducted the medical examination of victim Sonam and collected the MLC. She recorded the statement of the witnesses. During the course of investigation, the statement of prosecutrix was got recorded in the court u/s 164 CrPC.
12. During trial, accused submitted that he does not dispute genuineness of MLC No. 63357 and 63358, statement u/s 164 CrPC of the minor, register no. 19 of MHCM and birth certificate of Sonam. In view of the submissions made, examination of Dr. Adarsh, Dr. Neeta, Ld. MM Sh. Lalit Kumar, Dealing Clerk of Safdarjung Hospital and MHCM were dispensed with vide order dated 03.04.2014. PE was closed on 03.04.2014.
13. Accused was examined u/s 313 CrPC, wherein accused FIR no. 246/06 State Vs. Sunny PS Hazrat Nizamuddin 5 of 12 denied all incriminating evidence put to him. He did not examine any witness in defence. Therefore, the matter was fixed for final arguments.
14. Final arguments were addressed on behalf of Ld. APP for the State and Ld. Defence counsel, on behalf of all the accused.
15. Ld. APP for the State has argued that the prosecution has been able to prove its case beyond reasonable doubts. Complainant and other prosecution witnesses have proved that accused has taken the minor named Sonam from the lawful custody of her parent without consent or permission of parent or lawful guardian. It is also argued on behalf of State that the testimonies of prosecution witnesses leave no doubt that the accused had committed the offence with which he has been charged with.
16. Ld. Counsel for the accused, on the other hand, has argued that girl Sonum on her own wish had left with the accused and married her. It is submitted that the custody of the girl was also given to the accused after her recovery. The testimony of prosecution witnesses show that girl has gone with the accused out of her own free will. It is argued that the story of the prosecution is false and concocted, therefore accused may be acquitted.
FIR no. 246/06 State Vs. Sunny PS Hazrat Nizamuddin 6 of 12
17. I have considered the submissions of Ld. APP for the state and Ld. Counsel for the accused and perused the entire material on record carefully.
18. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the story of the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused. The accused has just to create a reasonable doubt, on the balance of probability, about the story of the prosecution.
19. In the present case, the allegation against the accused is that he has taken minor Sonam from the lawful custody of her parent without consent/permission of her parent. Accused has been charged with offence of kidnapping punishable under section 363 IPC.
20. Section 361 IPC defines 'Kidnapping'. Section 361, I.P.C. reads :
"361 : Kidnapping from lawful guardianship :
FIR no. 246/06 State Vs. Sunny PS Hazrat Nizamuddin 7 of 12
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 kidnap such minor or person from lawful guardianship."
21. The essential ingredients to constitute offence of kidnapping are as under:
(a) taking or enticing away a minor or a person of unsound mind
(b) such minor must be 16 years of age, if a male, or under 18 years of age, if a female
(c) the taking or enticing must be out of the keeping of the lawful guardian of such minor or person of unsound mind
(d) such taking or enticing must be without the consent of such guardian
22. The complaint regarding kidnapping of minor Sonam was made by Sh. Tilak Raj, father of minor. Sh. Tilak Raj has been examined as PW1. PW1 Tilak Raj has deposed that on 07.04.2006, he lodged a complaint in PP Jungpura regarding missing of his daughter Sonam, the complaint is Ex.PW1/A. After 34 days, he came to know that his daughter had married with one sunny S/o FIR no. 246/06 State Vs. Sunny PS Hazrat Nizamuddin 8 of 12 Sh. Kanhaiya Lal who resides at 5, Jangpura Road, Bhogal, New Delhi. He also handed over four documents viz. CBSE Board Certificate, MCD certificate, discharge slip of Safdarjung hospital regarding birth of his daughter and admission card of CBSE Board. These documents are MarkA to D. He has also stated that the date of birth of his daughter is 29.08.1988.
23. The minor has been examined as PW4. PW4 Sonam has deposed that on 26.04.2006 she got married to Sunny S/o Late Sh. Kanhaiya Lal. Her father had lodged an FIR against her husband regarding kidnapping and abduction for marriage as at that time her age was 17 yrs. She was sent to Nari Niketan and thereafter she was sent along with her husband. She has been residing with her husband for the last 6 yrs. She is living happily with her husband.
24. The statement of the minor was also recorded under section 164 Cr.P.C. Minor Sonam during her statement recorded before Ld. MM has stated that she had a love affair with Sunny and this fact was well into knowledge of her parents since Sunny's family is residing in the neighbourhood. She has also stated that because of her love affair with Sunny, her parents used to scold and beat her and also used to abuse her in filthy language on several FIR no. 246/06 State Vs. Sunny PS Hazrat Nizamuddin 9 of 12 occasions. When she got used with the nagging and behaviour of her parents, she decided to get married with Sunny. Hence, she married to Sunny out of her sweet and free will without any pressure from anyone. She left her parents out of her own sweet will without any force or pressure from outside.
25. Perusal of record reveals that accused has not disputed the birth certificate of minor Sonam. The complainant has stated that date of birth of her daughter is 29.08.1988. As per the documents, the minor was aged about 17 years 8 months on that date when she went with the accused.
26. I rely upon judgment of Hon'ble Supreme Court in S. Varadarajan Vs State of Madras, wherein a girl who was on the verge of attaining majority, voluntarily left her father's house, arranged to meet the accused at a certain place and went to the sub registrar's office, where the accused and the girl registered an agreement to marry. There was no evidence whatsoever that the accused had 'taken' her out of the lawful guardianship of her parents, as there was no active part played by the accused to persuade her to leave the house. Hon'ble Court has held that no offence under this section was made out.
FIR no. 246/06 State Vs. Sunny PS Hazrat Nizamuddin 10 of 12
27. It is settled proposition of law that all that is required to bring an act within the purview of section 363 IPC, is to 'take or entice' a minor or a person of unsound mind from the keeping of the lawful guardian. 'Taking' implies neither force nor misappropriation. This word means 'to go, or escort'. The consent of the minor child is of no relevance, because a minor has no legal capacity to contract and the consent given by a minor or a person of unsound mind is no consent. But there must be some active part played by the accused for 'taking' the minor. Simply permitting or allowing a minor to accompany one will not amount to an offence.
28. The question to be decided in the present case is whether there was taking of minor by the accused within meaning of section 361 IPC. The word 'take' means that there must be some active part played by the accused in taking the child out of the custody of the guardian. There must be some proof of the accused having done something which led to the girl come out of the keeping of her guardian. There is distinction between 'taking' and 'allowing a minor to accompany.'
29. In the present case, the minor has stated that she was beaten by her parents because of her affair with accused Sunny and FIR no. 246/06 State Vs. Sunny PS Hazrat Nizamuddin 11 of 12 when she got over behaviour, she decided to marry Sunny. The statement of the minor makes it clear that there was no role played by the accused in taking minor out of custody of her guardian. She has stated that she had left house out of her own free will. There is nothing on record to suggest that accused has played any role in taking the minor out of custody of her guardian.
30. In view of the discussion herein above, I am of the view that prosecution has failed to prove beyond reasonable doubt that there has been any active role played by the accused or any act done by him or any inducement given by him to bring the minor out of the custody of her guardian. The act of the accused is not covered within meaning of 'taking' or 'enticing' under section 361 IPC. Therefore, benefit of doubt is given to the accused and he is acquitted of the charges for offence punishable under section 363 IPC.
Pronounced in the open Court (Neha)
today on 16th October, 2014 MM03 (South East)
Saket, New Delhi
FIR no. 246/06 State Vs. Sunny
PS Hazrat Nizamuddin 12 of 12