Delhi District Court
Sc No.02/09 (State vs . Phool Chand @ Kashia) on 21 March, 2011
SC No.02/09 (State Vs. Phool Chand @ Kashia)
IN THE COURT OF SH. DINESH KUMAR SHARMA
ADDL. SESSIONS JUDGE - 02 (SOUTH) :
SAKET COURTS, NEW DELHI
SC NO. 02/09
Unique Case ID NO. 02403R0065312009
State Vs. Phool Chand @ Kashia
S/o Sh. Hari Ram
R/o Village Gosai Jat, PO Nagar
Distt. Basti (UP)
FIR No. : 204/07
u/Ss. : 363/366/376 IPC
PS : Sarojini Nagar
Date of Committal : 12.01.2009
Arguments Heard on: 21.03.2011
Date of Decision: 21.03.2011
J U D G M E N T.
Accused has been charged and tried for the offence u/Ss.
363/366/376 IPC.
1.0 On 22.04.07, on receipt of DD No.18A, ASI Brahmpal Singh met complainant Duli Chand, father of the prosecutrix, a hawker, who alleged that her 13 years old daughter was present along with him at his Page 1 of 14 SC No.02/09 (State Vs. Phool Chand @ Kashia) patri on 21.04.07 and at around 3:30 pm, she left the shop on the pretext of natural call and did not come back. The complainant on making inquiry, came to know that Phool Chand S/o Sh. Hari Ram who was also employed on the nearby flower shop was also missing. It immediately gave rise to the suspicion that Phool Chand had taken away his daughter and he may commit offence with her. On this complaint, a case FIR No.204/07 u/S.363 IPC was lodged. The prosecutrix and the accused were not found in the native village of the accused. On 18.07.08, Insp. Ritu Raj, the then IO, on the basis of a secret information formed a raiding party and conducted raid at New Delhi Railway Station. In the said raid, the accused and the prosecutrix were apprehended. Prosecutrix was medically examined and the offence u/S.376 IPC was added. The statement of the prosecutrix u/S. 164 Cr.P.C. was recorded. In her statement u/S.164 Cr.P.C., the prosecutrix stated that she had gone with the accused at her own will as they loved each other and had married. She also stated that she is pregnant from the accused. During investigation, the date of birth of the prosecutrix was found to be 10.04.1990. Prosecutrix was sent to Nari Niketan as per her wishes. The investigating agency concluded that accused had enticed away the prosecutrix on the pretext of marrying her and at that relevant time, the prosecutrix was below 18 years of age. After completing of investigation, charge sheet u/Ss. 363/366/376 IPC was filed.
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SC No.02/09 (State Vs. Phool Chand @ Kashia) 2 .0 Being a prima facie case charge u/Ss.363/366/376 IPC was framed to which accused pleaded not guilty and claimed trial. 3.0 Prosecution examined 15 witnesses in support of its case. PW1 prosecutrix was examined in camera. She stated that accused had gagged her mouth from back as a result of which she became unconscious. Accused took away the prosecutrix to his village and kept in a house. Accused had committed rape upon her and thereafter, he took her to Punjab, Ludhiana where accused forcibly married her in a temple by putting garlands. She was kept in Punjab for about 56 months and accused committed rape upon her. The prosecutrix stated that while accused was taking her to his native place at Basti and when reached Delhi, police officials apprehended them. PW1 also proved her statement u/S.164 Cr.P.C. as Ex.PW1/A. In the cross examination, prosecutrix admitted that she knew accused for last 10 to 12 years. She also admitted that the accused had expressed his affection for her and had also desired to marry her. The prosecutrix admitted the suggestion that accused had suggested her that they should run away and marry. It also came in the cross examination of prosecutrix that she had gone along with accused to her native village in train. There was crowd at the railway station as well as inside the train. She stayed along with accused in his village for about 1½ months. Accused had introduced her to his parents as well as to his relatives. From his village, Page 3 of 14 SC No.02/09 (State Vs. Phool Chand @ Kashia) accused took the prosecutrix to Punjab, where they exchanged garlands in a temple and no pheras had taken place. The prosecutrix stated that they stayed in Punjab for about 56 months in a rented accommodation. Prosecutrix stated that accused used to go to his duty from 9:30 am to 5:30 pm and there were many people living in the vicinity of our house and she used to be alone at home during the period accused was away for his job. However, she stated that accused used to lock her from outside. Prosecutrix admitted that she did not tell this fact of locking from outside to the police.
Prosecutrix admitted in her cross examination that after stay in Punjab for 56 months, they went to accused's village by train and she did not tell anyone either in the train or at station that she was being taken forcibly by the accused. In a specific question put to the prosecutrix that whether her statement made to the police is correct or her statement made to the court is correct, prosecutrix stated that her statement recorded by the court earlier is correct.
3.1 PW2 Duli Chand, father of the prosecutrix has admitted that her daughter was around 17 years of old at the time of incident. He proved his complaint Ex.PW2/A. PW2 also admitted in the cross examination that she knew the accused for last about 78 years. Accused had also worked at his shop for about 12 months. PW3 ASI Rajni proved the carbon copy of FIR No.204/07 as Ex.PW3/A. PW4 Dr. Yogesh Tyagi proved the MLC of Page 4 of 14 SC No.02/09 (State Vs. Phool Chand @ Kashia) accused as Ex.PW4/A. PW5 Dr. Sujatha Dass proved the MLC of the prosecutrix as Ex.PW5/A. PW6 Ct. Ashok Kumar proved the arrest memo and personal search memo of accused as Ex.PW6/A and Ex.PW6/B, respectively. PW6 also proved the recovery memo of girl as Ex.PW6/C and seizure memo of medical exhibits of the prosecutrix as Ex.PW6/D. PW7 SI Brahm Pal was the initial Investigation Officer (IO), he made an endorsement Ex.PW7/A on the statement of complainant, Ex.PW2/A. PW8 R.S. Sarma, TGT Teacher from School, proved the date of birth of prosecutrix. The certificate in this regard issued by the school was proved as Ex.PW8/A. He also proved the copy of admission register as Ex.PW8/B. 3.2 PW9 W / Ct. Mamta had taken the prosecutrix to Safdarjung hospital for medical examination. She proved the seizure memo of medical exhibits as Ex.PW9/A. PW10 Ct. Anuj Pal had taken the accused to Safdarjung Hospital for medical examination. He proved the seizure memo medical exhibits of accused as Ex.PW10/A. PW11 W ASI Saroj Bala had remained with IO for some period and stated that she had sent the case property to FSL, Rohini vide RC No.47/21. She proved the acknowledgment as Ex.PW11/A and copy of RC as Ex.PW11/B. PW12 Sh. Naresh Malhotra, the then Ld. MM proved the statement of the prosecutrix recorded u/S.164 Cr.P.C. as Ex.PW12/B and certificate as Ex.PW12/C. It is Page 5 of 14 SC No.02/09 (State Vs. Phool Chand @ Kashia) pertinent to mention here that Sh. Naresh Malhotra, Ld. ACJ has specifically stated that before recording the statement of prosecutrix, he had asked some question from the prosecutrix to know her competency to depose and Ld. Judge was satisfied that prosecutrix has understood the sanctity of speaking the truth. PW13 HC Hari Ram proved the extract of register No.19 as Ex.PW13/A and Ex.PW13/B. PW14 Insp. Ram Phal Singh had joined the investigation of this case on 18.07.08 along with Insp. Ritu Raj. He proved the recovery memo of prosecutrix as Ex.PW6/C as well as arrest memo and personal search memo of accused as Ex.PW6/A and Ex.PW6/B. PW15 Insp. Ritu Raj, investigation officer formally proved the investigation conducted by him on 18.07.08. IO admitted in his cross examination that prosecutrix was recovered after about one year when she was found missing from her house.
3.3 In his statement u/S.313 Cr.P.C., accused denied all the allegation and submitted that he has been implicated falsely. Accused stated that prosecutrix had gone with him at her own will. He has also stated that prosecutrix has deposed falsely due to family pressure. 4.0 Sh. M.Z. Khan, Ld. Addl. PP for the State has argued that prosecution has successfully proved its against the accused beyond reasonable doubt. It has been submitted that prosecutrix has made a Page 6 of 14 SC No.02/09 (State Vs. Phool Chand @ Kashia) consistent and corroborative statement on oath and she was below 18 years of age at the time of alleged offence. Therefore, in any case, her consent is irrelevant. It has further been submitted that offence of kidnapping is a offence against parents / guardian of the minor child. 4.1 Ld. counsel for the accused has submitted that the prosecution has miserably failed to prove its case against the accused. It has further been submitted that prosecutrix in her statement u/S 164 Cr.P.C. has stated that she had gone with the accused at her own will and had married him. It has also been submitted that later on, the prosecutrix has changed her stand under family pressure.
5.0 I have heard Ld. counsel for accused as well as Ld. Addl. PP for State and have perused the record carefully.
6.0 Accused has been charged for the offence u/Ss.363/366/376 IPC. In such like cases, the age of the prosecutrix is the most relevant aspect. As per the record produced by the prosecution, the date of birth of the prosecutrix was 10.04.90. The incident in question had taken place in April 2007. Thus, at the outset, the prosecutrix was more than 17 years of age as on the date of incident. However, as per Section 361 IPC, the relevant age is 18 years in the case of female. Thus, the main question in the present Page 7 of 14 SC No.02/09 (State Vs. Phool Chand @ Kashia) case is that whether the prosecutrix had gone with the accused at her own free will or she has been enticed away by the accused. 6.1 The basic provision in the offence of kidnapping is Section 361 IPC, which reads as under :
"Sec.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 kidnap such minor or person from lawful guardianship."
The object of section 361 IPC is to protect children of tender age from being abducted or seduced for improper purposes, as for the protection of the rights of parents and guardians having the lawful charge or custody of minors or insane persons. The gravamen of this offence lies in the taking or enticing of a minor child under the ages specified in this section, out of the keeping of the lawful guardian without the consent of such guardian. It is also pertinent to mention here that it is not necessary that taking or enticing must be shown to have been by means of force or fraud, persuasion by the accused persons which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardian Page 8 of 14 SC No.02/09 (State Vs. Phool Chand @ Kashia) would be sufficient to attract the section.
The essential ingredients of section 361 IPC are
(i)The person kidnapped must be minor or a person of unsound mind ;
(ii)The age of the kidnapped person must be under 16 years in the case of a male or under 18 years in the case of a female ;
(iii)The minor or person of unsound mind must have been in the keeping of a lawful guardian ;
(iv)The kidnapping must be from the keeping of the lawful guardian of the minor or in the case of a person of unsound mind from the keeping of the lawful guardian of such person ;
(v)The offender must have taken away or enticed a minor or a person of unsound mind from the keeping of the lawful guardian ;
(vi)Such "taking" or "enticing" must be without the consent of the lawful guardian.
6.2 Thus, in order to attribute section 361 IPC, there must be taking of the child out of the possession of the parents. If a girl without any intention on the part of the accused has left her home and come to the Page 9 of 14 SC No.02/09 (State Vs. Phool Chand @ Kashia) accused, the ingredient of this section would not be complete. Prosecution is required to prove that there was some persuasion or otherwise on the part of the accused to cause the girl to leave her home. It has been held in catena of judgments that "take" means to cause to go, to escort or to get into possession. The prosecution has to prove that the accused had some active part in the girl leaving her lawful guardian's house and taking shelter in his house. However, it may not be necessary that the act of the accused was not immediate cause of the girl leaving her father's place would not absolve him if he had at an earlier stage solicited her or induced her in any manner to take this step. It has been held that there is a distinction between "taking" and allowing a minor to accompany a person. Where the minor leaves her father's protection knowing and having capacity to know, the full import of what she is doing, and voluntarily joins the accused person, the accused cannot be said to have taken her away from the keeping of her lawful guardian.
6.3 In regard to "taking away", in landmark judgment case S. Varadarajan Vs. State of Madras, AIR 1965 SC 942, it has been inter alia held as under :
"It must, however, be borne in mind that there is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard Page 10 of 14 SC No.02/09 (State Vs. Phool Chand @ Kashia) ourselves from laying down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purpose of S.361 of IPC. 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 take 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."
Perusal of this judgment would make it clear that there has to be some material on the record to show that the accused had exercised some kind of inducement or some act which made the victim to leave the house of the guardian. The act of the accused may not be direct but the prosecution is duty bound to prove some material on the record which should distinguish a case, whether the minor himself / herself accompanied the accused out of his / her own free will and violation. The court while deciding such cases have also keep in mind the prevailing status of society. Now, the teenage children are not that innocent who can simply be influenced by the other persons.
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SC No.02/09 (State Vs. Phool Chand @ Kashia) 6.4 It is pertinent to mention here that in the present case, admittedly the girl was more than 17 years of age. It is also important to bear in mind that the prosecutrix in her statement u/S.164 Cr.P.C. has specifically stated that she had gone with the accused at her own free will. Even, perusal of MLC Ex.PW5/A also indicates that the prosecutrix stated before doctor that she is 19 years old and willingly ran off with the accused and left with him. Accused and prosecutrix had lived together for more than one year at different places. At no point of time, the prosecutrix raised any hue or cry. It has also come in the evidence of prosecutrix that accused took her to his village and introduced her to his parents and his relatives. Here is not the case that prosecutrix was kept at one place and she was not allowed to interact with anybody, the considerable period of more than one year is also to be taken into account. It does not appeal to the reason that the girl of more than 17 years of age, while commencing a journey in a train would not disclose to anybody that she had been "taken" or "enticed" away by the accused. If we see the case of the prosecution as a whole, it is apparent that prosecutrix had gone with the accused on her own free will. There is no element of "taking" or "enticing" away .
It is pertinent to mention here that the Hon'ble Delhi High Court in Crl. A. No.715 of 2008 titled as Kulwant Singh Vs. State, Date of order : 18.08.2010, it has been inter alia held in para 6 as under :
"... The girl was mature enough and had taken a Page 12 of 14 SC No.02/09 (State Vs. Phool Chand @ Kashia) decision to run away with a boy of almost of her own age. The appellant, at the time of incident, was only 18 years old and if the prosecutrix around 17 years of age had run away with him, I do not consider that it was case that appellant should have been convicted under Section 363, 366 and 376 IPC."
7.0 If we peruse the testimony of the prosecutrix recorded in the court, it does indicate that accused and prosecutrix had some earlier relations. They knew each other well. The court is bound to appreciate the evidence in such a manner that grain is separated from chaff. The fact that in her statement u/S.164 Cr.P.C., the prosecutrix had specifically stated that she had gone with the accused at her own will and later on took a somersault while making statement in the court is also very relevant. It is the function of the court to separate the grain from the chaff and accept what appears to be true and reject the rest. It is only where the testimony of a witness is tainted to the care, the falsehood and the truth being inextricable intertwined, that the court should discard the evidence in toto. Reference can be made to State of U.P. Vs. Shankar, AIR 1981 SC 897. 7.1 I consider that evidence in the present case is such that the falsity and truthfulness are so inextricable intertwined that the same cannot be separated. The statement of the prosecutrix if read as a whole, does not Page 13 of 14 SC No.02/09 (State Vs. Phool Chand @ Kashia) inspire confidence of the court.
8.0 In view of the discussions made herein above, I consider that prosecution has miserably failed to prove its case against the accused. Hence, accused Phool Chand @ Kashia is acquitted of the offence u/Ss.363/366/376 IPC in case FIR No.204/07 PS : Sarojini Nagar. 8.1 In terms of section 437(A) Cr.P.C., accused is directed to furnish bail bond in the sum of Rs.10,000/ with one surety in the like amount to appear before the Hon'ble High Court as and when court issues notice in respect of any appeal or petition filed against this judgment. Such bail bonds shall be in force for 6 months. 9.0 File be consigned to Record Room.
Announced in the open court (Dinesh Kumar Sharma) Today on 21.03.2011 ASJ02(South)/Saket Courts New Delhi / 21.03.2011 Page 14 of 14 SC No.02/09 (State Vs. Phool Chand @ Kashia) SC No.02/09 21.03.2011 Present : Ld. Addl. PP for State Accused on bail is present with Counsel.
Final arguments heard.
Vide separately announced judgment, accused Phool Chand @ Kashia is acquitted of the offence u/Ss.363/366/376 IPC in case FIR No.204/07 PS : Sarojini Nagar.
In terms of section 437(A) Cr.P.C., accused persons are directed to furnish bail bond in the sum of Rs.10,000/ each with one surety each in the like amount to appear before the Hon'ble High Court as and when court issues notice in respect of any appeal or petition filed against this judgment. Such bail bonds shall be in force for 6 months.
File be consigned to Record Room.
(Dinesh Kumar Sharma) ASJ02(South)/21.03.2011 Page 15 of 14