Delhi District Court
State vs . Amit Kumar @ Bitoo S/O Late Jai Kumar on 27 May, 2011
IN THE COURT OF MS. SUNITA GUPTA : DISTRICT JUDGE &
ADDITIONAL SESSIONS JUDGE : INCHARGE NORTH-EAST DISTRICT :
KARKARDOOMA COURTS : DELHI :
S.C. No. 1/10
Unique Case ID No. 02402R0350942009
State Vs. Amit Kumar @ Bitoo S/o Late Jai Kumar
r/o Mohalla Ghas Mandi, Patti Rampur,
Kasba Khekra, Distt. Baghpat, UP.
FIR No. 252/2009
PS Gokalpuri
U/s 363/366/420 IPC
Date of Institution :- 15.01.2010
Date of reserving the Judgement :- 16.05.2011
Date of pronouncement :- 21.05.2011
J U D G E M E N T :
1. The prosecution case emanates from the fact that on 14.08.2009 Subhash Tejyan lodged a complaint with the police regarding missing of his daughter Neelima ( name changed ) aged about 16 years and he suspected Amit @ Bitto s/o Jai Kumar to be responsible for kidnapping of his daughter. On the basis of this complaint case u/sec.363 IPC was registered. During the course of investigation, HC Narender produced certain documents regarding marriage of Neelima with Amit. Accused was apprehended and prosecutrix was recovered. She was sent to GTB hospital for her medical examination. Her statement u/sec. 164 CrPC was got recorded. After completion of investigation, charge sheet was submitted u/sec. 363/366/420/468/471 IPC.
2. On appearance of accused, arguments on charge were heard. Prima facie charge for offence u/sec. 363/366/420/471 IPC was made out against accused, to which he pleaded not guilty and claimed trial.
SC no.1/10 Page 1/193. To substantiate the charge, prosecution has examined Smt.Rajeshwari @ Rajesh (PW1), Neelam (PW2), Subhash Tejiyan (PW3), HC Narender (PW4), Lady Constable Noor Jahan(PW5), Sanjay Gupta (PW6), Ravinder Dhama (PW7), HC Devender (PW8), Sh. Sonu Agnihotri, ld.MM (PW9), Sh. Satya Parkash Pathak(PW10),Lady Constable Suman(PW11), Constable Dharampal(PW12) and SI Alok (PW13).
4. In order to afford an opportunity to explain the circumstances, appearing against accused, his statement u/sec. 313 CrPC was recorded, wherein he admitted that prosecutrix alongwith her parents used to reside at Khekda, Distt. Baghpat, UP, one year prior to the date of incident and he was known to prosecutrix for last 2-3 years. He further admitted that one year prior to 24.07.2009, prosecutrix alongwith her parents shifted to Delhi and they were residing at Gali no.6, Dayalpur, Karawal Nagar, Delhi. According to him prosecutrix used to ask him to marry with her. It was not denied that marriage took place at Arya Samaj Mandir, Yamuna Bazar, Delhi. However producing of document before the Purohit by him was denied. It was also denied that he obtained false certificate from Adarsh Janta Junior High School, Khekra, Baghpat, UP. According to him, he is innocent and has been falsely implicated in this case. Initially he stated that he wants to lead defence evidence, but ultimately he did not prefer to lead any defence evidence.
5. I have heard Sh. Ravindra Khandelwal, ld. Public Prosecutor and Sh.Kartar Singh, Adv., for the accused and have carefully perused the record.
6. Charge against accused are manifold. Firstly, I shall take up charge u/sec. 363 IPC.
7. In order to attract Section 361 IPC, it is incumbent upon the prosecution to prove following ingredients:-
SC no.1/10 Page 2/19(i) There must be taking or inducement of a minor or a person of unsound mind.
(ii) Minor must be under 16 years of age, if a male or under 18 years of age, if a female.
(iii) Taking or inducement must be out of keeping of lawful guardianship of minor or person of unsound mind, and
(iv) Taking or inducement must be without consent of guardian of minor or person of unsound mind.
8. The work "takes" or "entices" used in Section 361 IPC are quite significant. The word "takes" has been defined in the dictionary meaning "cause to come or go with one, or to get into possession". When the accused takes the minor with him whether she is willing or not, the act of taking is complete. The word "entices" involves an idea of inducement by exciting hope or desire in the other. Similarly, the word "induces" used in Section 362 IPC is quite significant. Case would fall within the mischief of Section 363 IPC only if the prosecution is able to prove that it was either taking or enticing the minor or there had been inducement. The word "induce" means to prevail on, to bring about, to persuade; as defined in Law Lexicon by P. Ramanathan Aiyar.
9. Turning to case in hand, it to be seen whether the prosecutrix was taken or induced by the accused.
PW1 Smt. Rajeshwari @ Rajesh is the mother of prosecutrix and has deposed that in the month of 'Sawan', in the year 2009 at about 2 pm, her daughter went missing from her house. Firstly she searched for her daughter in her neighbourhood and then informed her husband in his office regarding missing of her daughter. However, her husband told her that if she had gone somewhere with someone, let her go, what he can do now. Her husband did not come home immediately and when he returned home SC no.1/10 Page 3/19 at about 8-9pm, they inquired in the relation and searched for her, but she could not be traced. They suspected one boy namely Amit @ Bitto, who once came at her residence to meet her daughter. He was a resident of village Khekra. She suspected his hand in the allurement and enticement of her daughter.
PW-2 Neelima is the prosecutrix. She has deposed that accused Amit was known to her from before as she was earlier residing alongwith her parents at Khekra, Distt. Baghpat, UP. Accused was also residing in the same Distt. He was known to her for last 2-3 years. Accused asked her to marry. She told him that she would seek consent of her parents for marriage and when she asked from her parents, they declined. On 24.07.2009, she alongwith accused went to Arya Samaj Mandir, Delhi, where she got married with him. Thereafter she was taken to Dwarka and then to Dehradun by accused. She used to reside with him as his wedded wife. Police official and her father Subhash Tejiyan came at Dehradun and she alongwith accused were brought from there. She was taken for her medical examination, but she refused to undergo her medical examination. She was produced before the court and her statement u/sec. 164 CrPC Ex. PW2/B was recorded.
PW-3 Subhash Tejiyan is the father of prosecutrix. This witness has also deposed that on 24.07.2009, he received an information from his wife regarding missing of their daughter Neelima from the house. He asked her to search her in the neighbourhood. Thereafter, when he returned home, then he searched for her in the near vicinity and relatives and he suspected over Amit @ Bitto in the elopement of his daughter as on earlier occasion, he had come to his house to meet his daughter in his absence. He searched for his daughter, but she could not be traced, then he went to Police Station on 14.08.2009 and lodged complaint Ex. PW3/A. On the basis of which SC no.1/10 Page 4/19 case was registered.
PW-9 Sh. Sonu Agnihotri, ld. Metropolitan Magistrate proved the proceedings conducted by him by recording statement of prosecutrix u/sec. 164 CrPC, wherein she stated that she wants to live with her husband Amit throughout her life.
PW-10 Satya Parkash Pathak was working as Purohit at Arya Samaj Mandir, Yamuna Bazar, Delhi on 24.07.2009. He deposed that on that day, accused alongwith Neelima came to the Temple and Amit produced one affidavit showing his date of birth as 15.04.1984, photocopy of Voter-ID, one affidavit belonging to Neelima showing her date of birth as 15.01.1991 and one electricity bill in the name of Subhash Tejiyan as her residential proof. One certificate of Adarsh Janta Junior High Court, Khekra, Baghpat, UP belonging to Neelima showing her date of birth as 15.01.1991 was also produced. Witness Parkash Singh Bisht produced photocopy of driving license and other witness Monu produced photocopy of driving license. With the consent of both the parties, he solemnized marriage of Amit with Neelima. He produced copy of certificates and affidavits produced by accused Ex. PW10/A to Ex. PW10/F and also produced certificate of marriage Ex. PW10/G.
10. Perusal of aforesaid evidence led by the prosecution goes to show that prosecutrix and accused were known to each other from before as both were earlier resident of Khekra, Distt. Baghpat, UP. After prosecutrix, alongwith her parents shifted to Delhi, accused visited her house and they wanted to marry. Prosecutrix sought consent of her parents to marry accused, which was declined by them. Thereupon on 24.07.2009 she went alongwith accused to Arya Samaj Mandir, Delhi, where she got married with him. Since the witness did not support the case of prosecution on material facts, she was cross examined by the ld. Public Prosecutor. In cross SC no.1/10 Page 5/19 examination, she denied that she was taken by accused from her house or that he used to ask her every now and then to marry him or that she used to refuse for the same. She went on stating that she also wanted to marry him and got married with him. According to her accused is her husband and she is living happily with him. She have no grudge against him and did not want to proceed with the case. Even her parents Smt. Rajeshwari @ Rajesh and Subhash Tejiyan have admitted in their cross examination that prosecutrix had got married with the accused and she is residing with him. Her father further deposed that he does not want to proceed against the accused and he only wants that he should keep his daughter happily and peacefully.
11. It has also come in the testimony of Subhash Tejiyan that he had come to know on 24.07.2009 itself that accused had taken his daughter, but he did not got the FIR recorded against him prior to 14.08.2009. This was precisely for the reason that as per the testimony of prosecutrix, she had even sought the consent of her parents to marry accused, but they were not agreeable for marriage and therefore she herself went alongwith the accused to marry him and thereafter got married with him at Arya Samaj Mandir, Delhi.
12. Substantially similar facts were involved in AIR 1965 SC 942, S Vardarajan vs. State of Madras, where dealing with the case of a minor girl, who was on the verge of attaining majority and who herself telephone the accused to meet her and finding him waiting with his car, got into that car of her own, it was held that the accused was not guilty of taking out the girl out of the lawful guardianship of her father as there was no suggestion that the act was done by force or anything like that on the part of the accused. This judgement was relied upon in Bhagwan Singh & Ors. V. State of Anr., 2006 (3) JCC 2050 and following portion from the SC no.1/10 Page 6/19 judgement of S. Varadarajan ( supra ) was quoted:
"But when the girl ( who though a minor had attained the age of discretion and is on the verge of attaining majority and is a senior college student ) went from the house of the relative of father where she is kept, herself telephone the accused to meet her at a certain place, and goes there to meet him and finding him waiting with his car gets into that car of her own accord, and the accused takes her to various places and ultimately to the Sub-Registrar's office where they get an agreement to marry registered, and there is no suggestion that this was done by force or blandishment or anything like that on the part of the accused but it is clear from the evidence that the insistence of marriage came from her side, the accused by complying with her wishes can by no stretch of imagination be said to have 'taken' her out of the keeping of her lawful guardianship, that is, the father.
The fact of her accompanying the accused all along is quite consistent with her own desire to be the wife of the accused in which the desire of accompanying him wherever he went is of course implicit. Under these circumstances, no inference can be drawn that the accused is guilty of taking away the girl out of the keeping of her father. She has willingly accompanied him and the law does not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him."
13. These authorities were relied upon subsequently in Ruksana vs. Govt. of NCT of Delhi, 2007 (3) RCR ( Criminal ) 542, where Hon'ble High Court had relied upon Vivek Kumar @ Sanju and another V. The State and another in Crl. M. C. no.3073-74/2006 decided on 23.02.2007, wherein it was observed as under:-
"There is no law which prohibits a girl under 18 years from falling in love with someone else. Neither falling in love with somebody is an offence under IPC or any other penal law. Desiring to marry her love is also not an SC no.1/10 Page 7/19 offence. A young girl,who is in love has two courses available to her - one is that she should marry with the consent of her parents after obtaining the consent of her parents. If her parents do not agree to persuade them or to wait for attaining the age of majority and then exercise her right as a major to marry the person of her own choice. However, this is possible only when the house of her parents where she is living has congenial atmosphere and she is allowed to live in peace in that house and wait for attaining age of majority. This might have been the reason in the mind of petitioner no.2 when she told her father that she was in love and wanted to marry Sanjay, but the response of father when daughter confided in him, created the fear in the mind of petitioner no.2. Her father slapped her and told that her action would malign the religion and bring danger to the religion. He even threatened to kill her and marry her off to some rich person. When once such a threat is given to a girl around 17 years of age, who is in love, under such circumstances she has a right to protect her person and feeling against such onslaught of her relatives even if the onslaught is from her own parents. Right to life and liberty as guaranteed by the Constitution is equally available to minors. A father has no right to forcibly marry off his daughter, who is below 18 years against her wishes. Neither he has a right to ill-treat her, because she intends to marry out of her religion. If a girl around 17 years of age runs away from her parents house to save herself from the onslaught of her father or relatives and joins her lover or runs away with him, it is no offence either on the part of the girl or on the part of the boy with whom she ran away and married".
13. Manish Singh Vs. State, 2006 (I) RCR (Cri.) 653 was also a case, where FIR was registered under Section 363 IPC, PS Sarojini Nagar. Direction was given to produce the prosecutrix. When she appeared in the Court, she stated that she had solemnized marriage with accused of her own SC no.1/10 Page 8/19 accord in a Temple of Delhi. They cohabit together, stayed at different places in Bihar and that she was neither forced or taken away. She had married with accused of her own choice. She claimed that she was 19 years old. However, her father claimed that she was 14 years old, as per school leaving certificate. In view of the statement of prosecutirx, Hon'ble High Court observed that continuous criminal proceedings under Section 363 IPC would be an exercise in futility. Besides, it would also be detrimental to matrimonial life of the couple and of the infant. Prosecutrix being around 17 years of age, on the verge of majority, having reached an age of discretion, had accompanied accused of her own volition, without any kind of enticing or inducement or force from anyone. There was, thus, no taking away or enticing away of minor out of keeping of lawful guardian. Essential ingredient of offence of kidnapping are missing. Relying upon S. Vardarajan ( Supra ), FIR was quashed.
14. Present case squarely falls within the four corner of these authoritative pronouncements and it has come in the testimony of the prosecutrix that accused was known to her 2-3 years prior to 24.07.2009. They wanted to marry, therefore, she sought the permission from parents of prosecutrix, who were not agreeable for the marriage and therefore she herself went with him to Arya Samaj Mandir, Delhi and got married. Under these circumstances it is not a case of taking away or inducing the prosecutrix out of keeping of lawful guardianship by accused.
15. Only question left for consideration is the age of prosecutrix. In this regard different versions are coming. When the report was lodged by Subhash Tejiyan on 14.08.2009 at that time, he gave the age of his daughter as 16 years. According to him, his daughter Neelima studied at KVM Girls Inter College, Khekda, Baghpat, UP upto 10th class, but she could not qualify for 10th class examination. He had given the photocopy of 10th class SC no.1/10 Page 9/19 certificate of his daughter to the police official. In his cross examination, he deposed that he did not get issued any birth certificate of his daughter Neelima from any local authority. Neelima was born at house. He had recorded her date of birth in his record, when his daughter was born and on that basis, he had mentioned her date of birth in her school record.
16. PW-7 Ravinder Dhama, Heard Clerk, Girls Inter College, Khekra, Distt. Baghpat, UP has deposed that one Delhi Police official came to Principal of school and showed photostate copy of mark sheet belonging to roll no.0553461 in the name of prosecutrix. On checking the same with the College record, it was found that it was issued in the name of prosecutrix and as per record, her date of birth was 01.03.1993. Principal issued the certificate Ex. PW7/A. He also proved the transfer certificate Ex. PW7/B. In his cross examination, he deposed that the date of birth of prosecutrix was mentioned on the basis of transfer certificate of Khekhra Vidhya Niketan Junior High School, Khekra, Baghpat, UP.
17. Prosecutrix had given her age as 19 years before the court. According to her, her date of birth is 10.08.1991. However, she admitted in her cross examination by the ld. Public Prosecutor that she never studied in Adarsh Janta Junior High School, Khekra, Distt. Baghpat, UP at any point of time and she had passed 6th, 7th and 8th standard from Vidhya Bhawan Public School, Khekda, Baghpat, UP. The date of birth 10.08.1991 was got recorded by her and certificate which was got prepared by the accused. She went on stating that she was also examined for her bony age, wherein her age was opined upto 17 to 19 years. Although the bony age report has not been proved by the prosecution, but since the same has been placed on record by the prosecution itself, as such, same can be considered and as per this report, it was opined that prosecutrix was more than 17 years, but less then 19 year of age.
SC no.1/10 Page 10/1918. Result of the aforesaid discussion is that two set of evidence are forthcoming in regard to age of prosecutrix in as much as as per the certificate Ex. PW7/A proved by Ravinder Dhama (PW7), the date of birth of prosecutrix is 01.03.1993. According to complainant, she was 16 years and 6 months old on the date of incident. However, it is admitted by father of prosecutrix that he did not get any birth certificate of the prosecutrix and she was born at house. According to him, he had mentioned her date of birth in the record maintained by him, but no such record has been produced by him. Ravinder Dhama (PW7) has deposed that entries regarding date of birth of prosecutrix was made on the basis of transfer certificate of KVM Girls Inter College, Khekda, Baghpat, UP. However, record of KVM Girls Inter College has not been produced in order to ascertain as to on what basis the entries regarding date of birth of prosecutrix was made there. On the other hand, when the prosecutrix was sent for her ossification test, at that time, doctor opined her age to be more than 17 years, but less than 19 years.
19. In Harendera Narain Singh V. State of Bihar, AIR 1991 S.C. 1842, their lordships of the Supreme Court had reiterated the well known principle of the criminal jurisprudence law that :
"......The basis rule of criminal jurisprudence is that if two views are possible on the evidence adduced in a case of circumstantial evidence, one pointing to the guilt of the accused and the other to his innocence, the Court should adopt the latter view favourable to the accused....."
20. In view of this authoritative pronouncement, since two views are possible then the view which is favourable to accused is to be taken and, therefore, it is to be taken that prosecutrix was not minor on the date of SC no.1/10 Page 11/19 incident.
21. Even if it is assumed for the sake of arguments that the age given by the father of prosecutrix and as recorded in her school as 01.03.1991 is her correct date of birth and, therefore, she was 16 years and 6 months old at the relevant time, even then she was at the verge of attaining majority.
22. Rukshana vs. Govt. of NCR of Delhi, 2007 (3) RCR (Crl) 542 was also a case where a minor girl around 17 years fell in love with a boy. Her father threatened to kill her. She fled away with the boy and married him to escape from onslaught of her father. Hon'ble High Court took note of the admitted fact that they were living together after marrying each other and were blessed with a male child, who was still infant. The only hurdle was that she was 16 years and six months of age and thus was minor at the time of commission of alleged offence. It was observed that only because of this reason, they cannot be denied the relief of quashing of FIR, inasmuch as, this course of action is in the interest of not only husband, but also wife and her child. The prosecution is launched on the allegations that petitioner no. 2, that is, wife is the victim of crime. However, if husband is now prosecuted and convicted again, it would be wife who shall become victim in that eventuality. Additional victim would be small child. Both of them would be rendered without any financial support and the consequences can be disastrous. The Court cannot compound her sufferings and miseries more so when she willingly went with the accused to marry him. Thus, the FIR was quashed.
23. These observations are fully applicable to the case in hand in as much as even as per the date of birth, prosecutrix was on the verge of attaining majority, having reached the age of discretion. She had gone with the accused of her volition, without any inducement or enticement or force from any one. She herself appeared before the Purohit at Arya Samaj SC no.1/10 Page 12/19 Mandir and married with accused. When she was recovered alongwith the accused and was brought to Delhi and was taken for medical examination, at that time also she declined to undergo her medical examination. When her statement under Section 164 CrPC was recorded, at that time also she stated that she got married with accused of her own will and want to live with him at any cost. Even before the Court, she gave the same version. Her parents also admitted that prosecutrix got married with accused and now living with him. They do not want any action against him.
24. That being so, it is clear case where essential ingredients of offence of kidnapping are missing. Therefore, no case made out either for offence u/sec. 363 or 366 IPC.
25. The other charge against the accused is under Section 420/471 IPC. It is the case of prosecution that Subhash Tejiyan lodged the complaint with the Police and FIR was got registered on 14.08.2009. Therefore, he came to the Police Station and handed over the photocopy of mark sheet, 10th class of Neelima showing her date of birth as 01.03.1991. When the investigation was entrusted to SI Alok (PW10), SHO PS Gokalpuri received registered envelope containing some document regarding marriage of Neelima and Amit. Documents were entrusted to HC Narender (PW-4) for verification. HC Narender (PW-4) has deposed that he was handed over certificate of marriage of Amit and Neelima from Arya Samaj Mandir, Jamuna Bazar, Delhi, age proof certificate transfer certificate of Neelima issued from Adarsh Janta Junior High School, Khekra, Baghpat, UP and mark sheet of Neelam from concerned school at Khekda Vidhya Niketan Girl Inter College, Khekda, Baghpat, UP. He went to Adarsh Janta Junior High School, Khekda, Baghpat, UP on 13.08.2009 and met with the Principal namely Sanjay Gupta and inquired from him regarding the authenticity of the transfer certificate in the name of prosecutrix. Sanjay Gupta, Principal SC no.1/10 Page 13/19 of school issued the certificate mark B certifying that prosecutrix never studied in their school either as private or regular candidate. Thereafter, he went to Khekda Vidhya Niketan Girls Inter College, Baghpat, UP and met with the Principal in order to verify the authenticity of mark sheet in the name of prosecutrix mark C. The Principal gave certificate mark D to the effect that prosecutrix was a student of class 10th and she appeared in High School examination in the year 2009 against roll no.0553461 and she failed in 10th class and as per record, her date of birth is 01.03.1993. Thereafter, he went to Arya Samaj Mandir, Jamuna Bazar, Delhi and saw the record regarding marriage between the prosecutrix and Amit. One Purohit namely Pathak JI met him and he gave statement mark E.
26. PW6 Sanjay Gupta gave confirmation to the facts as deposed by PW4 Constable Narender and deposed that on 13.08.2009, he was working as Principal of Adarsh Janta Junior High School, Khekda, Baghpat, UP. On that day, Delhi Police official came to him and showed him transfer certificate of his school having registration no.100 admission file no.2 belonging to prosecutrix. On checking the said transfer certificate with his school record, it was found that at register no.100 there is name of Amit Sharma s/o Sh. Ram Kumar Sharma and the transfer certificate was issued to Amit Sharma on 15.07.2009. Transfer certificate mark A was not issued from their school and as per record no person in the name Neelima d/o Subhash Tejiyan had studied in their school. The said certificate mark A was fake and was not issued by his school and someone misused the name of the school. He proved his report Ex. PW6/A.
27. As seen above PW-7 Ravinder Dhama working as Head Clerk proved his certificate Ex. PW7/A issued by the Principal of college certifying that prosecutrix was student of that school and mark sheet was issued to her.
28. PW10 Satya Parkash Pathak who was working as Purohit at Arya SC no.1/10 Page 14/19 Samaj Mandir, Yamuna Bazar has also deposed that when accused came alongwith prosecutrix, at that time he produced one certificate of Adarsh Janta Junior High Schoo belonging to prosecutrix showing her date of birth as 15.01.1991.
29. Prosecutrix herself has admitted in her cross examination by ld.
Public Prosecutor that she never studied in Adarsh Janta Junior High School, Khekra, Baghpat, UP at any point of time. She passed 6, 7th and 8th standard from Vidhya Bhawan Public School, Khekra, Baghpat, UP and she went on stating that she had asked accused to get the document prepared from Adarsh Janta Junior High School, Khekra, Baghpat, UP and accordingly accused got certificate prepared from there wherein her date of birth was recorded as 10.08.1991. She admitted that she got recorded incorrect date of birth in her affidavit and also in the certificate of marriage.
30. Aforesaid evidence proves beyond reasonable doubt that prosecutrix had studied in Vidhya Bhawan Public School, Khekra, Baghpat, Delhi and her date of birth was recorded as 01.03.1993 and therefore as per this certificate she was less than 18 years of age. Since accused wanted to marry prosecutrix, therefore, forged certificate was obtained from Adarsh Janta Junior High School, Khekda, Baghpat, UP, showing her date of birth as 15.01.1991, in order to show that she was major at the time when she went before the Purohit for the purpose of solemnization of marriage with accused. Accused tried to take plea that these documents were produced by Clerk of some Advocate. However, this plea does not appeal to reason in as much as he has neither named the counsel nor the Clerk, who produced the documents before the Purohit. Moreover, the prosecutrix herself admitted that certificate was got prepared by accused Amit and after that it was produced before Purohit. Under these circumstances, it stands established beyond reasonable doubt that the accused fraudulently used as genuine the SC no.1/10 Page 15/19 transfer certificate alleged issued by Adarsh Janta Junior High School, Khekra, Baghpat, UP, knowing it to be forged document. As such, offence u/sec. 471 IPC stand proved.
31. It further stand proved that this forged certificate was produced by accused before PW Sh. Satya Prakash Purohit of Arya Samaj Mandir in order to induce him to believe the certificate to be genuine and to believe that Prosecutrix was major to get the marriage solemnized. Under these circumstances, offence u/sec. 420 IPC is also proved.
32. Result of the aforesaid discussion that that while offences u/sec.
363/366 IPC are not made out and accused is acquitted for these offences. However, charge for offence u/sec. 420/471 IPC are duly established against accused. He is accordingly held guilty for these offences.
Announced in the open Court on (Sunita Gupta)
21.05.2011 District Judge & Addl. Sessions Judge,
Incharge North East Distt., Karkardooma Courts,
Delhi
SC no.1/10 Page 16/19
IN THE COURT OF Ms. SUNITA GUPTA : DISTRICT JUDGECUMADDITIONAL SESSIONS JUDGE : NORTHEAST DISTRICT : KARKARDOOMA COURTS : DELHI :
S.C. No. 01/10Unique Case ID No. 02402R0350942009 State Vs. Amit Kumar @ Bittoo S/o late Jai Kumar, R/o Mohalla Ghas Mandi, Patti Rampur, Kasba Khekra, Distt. Baghpat, U.P. FIR No. 252/09 PS Gokalpuri U/s 420/471 IPC.
Date of Institution : 15.01.2010 Date of reserving the Order : 27.05.2011 Date of Pronouncement : 27.05.2011 ORDER ON THE POINT OF SENTENCE : Vide my separate order dated 21.05.2011, accused was convicted for offence under section 420/471 IPC.
2. Today, I have heard Sh. Kartan Singh, Advocate, for the convict and Sh.
Ravinder Khandelwal, ld. Prosecutor for the State.
3. ld. counsel for the convict has moved an application under section 360 Cr.P.C read with section 3 and 4 of the Probation of Offenders Act, 1958 for releasing the convict on probation for good conduct on the ground that he belongs to a respectable family. He is working as peon in NDPL Department.
His wife is pregnant and her delivery is due on 29.09.2011. Mother and father of the convict have already expired, as such there is no other family member to look after his wife except the convict himself. He is the first offender and is not involved in any other case, except this case. He has also suffered imprisonment for a period of two months in this case. Even his wife remained in Nari Niketan SC no.1/10 Page 17/19 for about three months. Reliance was placed on Gyan Chand Sharma vs. State, 98 (2002) DLT 194 and Deepak Kumar vs. State, 122 (2005) DLT 362 for submitting that accused be released on probation. In case such relief is not granted, his wife would suffer great loss and will face starvation as the accused is sole bread earner in the family. Even his service can be terminated.
4. The accused was charge for offences under sections 363/366/420/471 IPC vide separate orders, dated 21.05.2011 he was acquitted of offences u/s 363/366 IPC. However, it has come on record that for the purpose of marrying the prosecutrix, forged certificate was produced before the Purohit of Arya Samaj Mandir in order to show prosecutrix as major and on the strength of that certificate marriage was solemnized. However, it is a matter of record that prosecutrix is his legally wedded wife and both are living together happily and now she is in family way. Even parents of the prosecutrix did not want any further action in the matter. Under these circumstances, keeping in view the facts and circumstances of the case, coupled with the fact that accused is not a previous convict nor he is reported to be facing trial in any other case, besides that he is gainfully employed with NDPL and is the only bread earner of the family, and in case he is sent to jail then the prosecutrix, who is now in a family way would suffer starvation, he also remained in Jail for a period of about two months, as such ends of justice will be met if a lenient view is taken.
Accordingly, accused is ordered to be released on probation for a period of one year, on his furnishing a personal bond in the sum of Rs.10,000/ with one surety in the like amount, with an undertaking to keep peace and be of good behaviour for that period, failing which he would come and receive the sentence. He is also directed to deposit a sum of Rs.5,000/ towards the cost of proceedings.
SC no.1/10 Page 18/195. A copy of the judgement and order on sentence be supplied to the convict free of cost.
6. File be consigned to Record Room.
Announced in the Open Court (Sunita Gupta)
th
On this 27 day of May, 2011. District JudgecumASJ,
I/C Karkardooma Courts, Delhi.
SC no.1/10 Page 19/19