Delhi District Court
State vs Manoj on 21 August, 2023
IN THE COURT OF SH. AKSHAY SHARMA, METROPOLITAN
MAGISTRATE-02, SOUTH EAST, SAKET COURTS, DELHI.
FIR No. 90/12
PS. OIA
U/s. 363/366 IPC
STATE VS MANOJ
JUDGMENT
A. SL. NO. OF THE CASE : 183/2/14 B. DATE OF INSTITUTION : 06.05.2014 C. NAME OF THE : Kailash Chand COMPLAINANT S/o Sh. Kedar D. NAME OF THE : Manoj ACCUSED S/o Sh. Ved Prakash E. OFFENCE COMPLAINED OF : U/s 363/366 IPC F. PLEA OF ACCUSED : Pleaded not guilty.
G. FINAL ORDER : Acquittal.
H. DATE OF COMMISSION
OF OFFENCE : 03.04.2012
I. DATE OF FINAL
ARGUMENTS : 21.08.2023
J. DATE OF SUCH ORDER : 21.08.2023
BRIEF FACTS
1 Brief facts of the instant case are that on 04.04.2012 after
receipt of DD no.10A, HC Suraj Bhan along with Ct. Sonu reached at the spot i.e., House no.A/98, Churriya Moholla, Tehkhand Village, New Delhi, where they met complainant Kailash. Complainant gave his statement in which he stated that his niece Sunita d/o Lt. Sh. Sompal resides with him since past 04 years as the mother and the father of the niece has expired. Complainant further stated that his niece Sunita is missing since 01:00 PM on 03.04.2012. Efforts have been made to trace :2: her, but she is not found anywhere and neither any clue has been found regarding her. Complainant gave the description of his niece Sunita as age 16, height 5'2'', round face, fair complexion, long hair. Further, it was stated that she was wearing blue colour suit and salwar and black colour hawai slippers (chappal). Complainant further stated that on 03.04.2012 Manoj s/o Ved Prakash resident of Rajiv Camp, OIA-II has taken her niece somewhere after alluring her on the pretext of marriage and prayed for appropriate legal action against Manoj. On this complaint, FIR u/s 363 Indian Penal Code, 1860 (hereinafter, referred to as IPC) was registered and the investigation was handed over to IO/SI Madhu Sharma. During the course of investigation school certificate of victim Sunita was obtained as per which her date of birth was 30.07.1996. For the search of the victim, wireless messages were flashed in order to locate the victim. Thereafter on 08.04.2012, victim Sunita alongwith accused Manoj came to the PS and surrendered themselves. They also produced a document regarding their marriage in which the age of the victim was reflected as 20 and the age of Manoj was reflected as 22 years. This document was notarized from Hathras, Uttar Pradesh. Thereafter victim was produced in the court and her statement u/s 164 CrPC was recorded. In the statement victim Sunita stated that she wanted to marry accused Manoj, however, her family members were against the same, therefore, on 03.04.2012 she went along with Manoj and performed court marriage in Kasganj, Uttar Pradesh. When this fact of marriage was informed to the family members, death threats were extended by the members of the family. Victim Sunita :3: also stated that around 01 year back her uncle Ram Avtar attempted to do wrong acts with her and now she wants that her family members should not trouble her and Manoj. After recording of the statement u/s 164 CrPC, victim was taken for medical examination at AIIMS hospital, where she refused to get her internal check-up conducted. Thereafter, victim was produced before CWC Lajpat Nagar. Further, the school leaving certificate of the victim was got verified, which was found to be correct. Further, the bone ossification test of the victim was also conducted as per which the age of the victim was found in between 14.9-15.8 years. Thereafter, the remaining aspect of investigation was completed and present charge-sheet us 366/363 IPC was filed against accused Manoj.
2. Vide order dated 28.10.2014, matter was remanded back for further investigation as victim Sunita had casted specific allegations on her uncle Ram Avtar in her statement recorded u/s164 CrPC. Thereafter on 30.06.2015, supplementary final report against Ram Avtar was filed, keeping accused Ram Avtar in column no.12, with the conclusion that sufficient evidences could not come on record against accused Ram Avater after investigation. Thereafter, cognizance for offence u/s 363 IPC was taken and accused Manoj was summoned for facing trial.
CHARGE
3. After compliance of Section 207 CrPC, and after hearing arguments on charge, charge was separately framed against accused Manoj u/s 363 IPC to which he pleaded not guilty and claimed a trial.
:4:PROSECUTION EVIDENCE
4. Prosecution in support of its case examined the following witnesses:
4.1. PW-1 HC Sonu Dhama, was examined and he in his examination deposed that on 04.04.2012, he was posted as constable at PS-OIA. On that day, IO/HC Suraj Bhan received DD no.10 A. Further he submitted that on that day, he alongwith IO went to A-98, Churriya Mohalla, Tehkhand village and met with complainant Kailash. Kailash who got recorded his statement regarding kidnapping of his niece namely Sunita, IO prepared the rukka and gave it to him and sent him to PS-OIA for registration of FIR. After registration of FIR, he handed over the original rukka and copy of FIR to SI Madhu Sharma at PS-OIA.
Thereafter, he alongwith SI Madhu Sharma came back at the spot, HC Suraj Bhan was relived from the spot. Thereafter, they made efforts to search the accused but to no avail. PW1 further submitted that one Ravi was also interrogated but nothing could be discovered. IO/WSI Madhu Sharma recorded his statement.
4.2. PW2/ Victim Ms. Sunita, was examined and she in her examination deposed that on 03.11.2012 she had gone with accused Manoj on her own volition. Accused had not forced to go with her.
At that stage, Ld. APP sought permission to cross-examine the witness as she was not supporting the case of the prosecution. On the cross-examination by the Ld.APP, PW2 stated that it is wrong to suggest that accused and she had done court marriage. It is wrong to suggest that :5: she had been won over by the accused. It is wrong to suggest that she is deposing falsely.
4.3. PW 3 ASI Suraj Bhan, was examined and he in his examination deposed that on 04.04.12, he was posted as HC at PS OIA. At around, 1:00 p.m. complainant had called on 100 number pertaining to his missing niece. PW3 further submitted that he was marked the DD no. 10A pertaining to the said call. He along with constable Sonu went to the spot i.e. Tehkhand Village, Okhala, New Delhi. There he recorded the statement of complainant Kailash vide exhibit PW3/A signed by him at point A. He further submitted that he prepared the Tahreer vide Ex. PW3/B and handed over the same to constable Sonu. Constable Sonu went to the PS and returned back to the spot along with W/SI Madhu Sharma. He was informed that further investigation in the present case had been transferred to W/SI Madhu Sharma.
5. It is pertinent to state that on 10.02.2020 summons issued to PW/ complainant Kailash were received back with the report that the PW has expired. On 02.06.2022, death verification report of PW Kailash was filed as per which the factum of death of PW Kailash was duly verified from the SDMC. In light of the death of PW Kailash, PW Kailash was dropped from the list of witnesses. Further, on 05.06.2023, summons issued to SI Madhu Sharma were received back with the report that PW W/SI Madhu Sharma has expired on 25.12.2016. In light of this, PW W/SI Madhu Sharma was also dropped from the list of witnesses.
6. It is also to be noted that accused in his statement u/s 294 :6: CrPC, admitted copy of the FIR, MLC of victim Sunita, x-ray report of sunita and statement u/s 164 CrPC of the victim Sunita, as a result of which PWs mentioned at serial no. 3,4,5 and 8 of the witness list were dropped.
STATEMENT OF THE ACCUSED
7. After conclusion of the examination of all the material prosecution witnesses, prosecution evidence was closed and statement of the accused was recorded, in which accused stated that he has been falsely implicated in the present case and chose not to lead any defence evidence.
FINAL ARGUMENTS
8. Final arguments were addressed, Ld. APP for the state contended that the victim was minor at the time of offence, her consent is irrelevant and the act of the accused itself speaks for the commission of the offence and hence the case of the prosecution stands proved beyond reasonable doubt. Per contra, Ld. Counsel for the accused contended that there is no incriminatory material available on record to convict the accused. The complainant was not examined, the victim has not supported the case of the prosecution rather she has stated that she went with the accused on her own.
DISCUSSION OF LAW, EVIDENCE AND DECISION THERE ON.
9. It is the settled principle of criminal law that the burden of proof in a criminal trial is on the prosecution to prove its case beyond :7: reasonable doubt by leading cogent evidence. The prosecution cannot take the benefit of the weakness of the defence and has to stand on its own legs.
10. Accused in the instant case is charged for offence punishable u/s 363 IPC. Section 363 provides for punishment for kidnapping. Kidnaping is of 02 types, one is kidnapping from India which is defined u/s 360 IPC, the other one is kidnapping from lawful guardianships which is defined u/s 361 IPC. Section 361 IPC is relevant in the instant case. Section 361 IPC defines Kidnapping from lawful guardianship.
"361 Kidnapping from lawful guardianship.--Whoever takes or entices any minor under 1[sixteen] years of age if a male, or under 2[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. Explanation.--The words "lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other person"
11. Section 361 IPC provides for either of the 02 actions on the part of the accused for making him liable to be punished u/s 363 IPC.
:8:One is the enticing of the minor and the other is the taking away of the minor from the lawful guardianship without the consent of the lawful guardian. In the opinion of this court, no act of enticing is complained off in the instant case and neither the facts indicate towards any act of enticing. Therefore, the aspect for consideration before this court is that of "taking" and the necessary question to be answered is that whether the accused by his actions can be construed to have taken away the minor girl Sunita out of the lawful guardianship of her uncle.
12. It is pertinent to note that the complainant was not examined before this court due to the fact that the complainant expired, hence the version of the complainant as stated in his complaint i.e., Ex.PW3/A remains unproved and unsubstantiated. Moreover, the victim was examined by the prosecution as PW2. It is to be noted that PW2 Ms. Sunita in her examination before this court had clearly stated that she had gone with the accused on her own volition and the accused had not forced her to go with him. Basically, PW2 had not supported the case of the prosecution in her examination in chief, also PW2 in her statement u/s 164 CrPC had not casted any aspersions regarding forceful taking by the accused.
13. In light of the testimony of the victim PW2 and the fact that the complainant could not grace the witness box to prove the contents of the complaint, the question to be answered is that can it be said that the accused by his conduct or actions took the victim Sunita out of the lawful guardianship of the complainant and can the accused be consequently :9: convicted for offence u/s 363 IPC.
14. In S.Varadrajan Vs. State of Madras AIR 1965 SC942, the Hon'ble Apex Court has explained the scheme of Section 361 IPC as under.
"...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 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.":10:
15. Further the Hon'ble High Court of Delhi in State (NCT of Delhi) Vs. Vipin Sharma, Criminal Revision Petition no.93/2018, after placing reliance on the judgment of S.Varadrajan Vs. State of Madras AIR 1965 SC942, held..
"It is, therefore , clear that the sine qua non of an act being covered as offence punishable under Section 361/363 IPC is that the minor should have been „enticed‟ or „taken away‟ from the custody of lawful guardian of the minor. In the present case, there is no evidence on record or any sort of allegation from the victim that it was the accused, who had enticed, allured or induced the victim to leave her house or had taken her out of her lawful guardianship. The victim in her statement under Section 161 as well as 164 Cr.P.C. had stated herself that she had, on her own, gone to the accused and she had done so on several other occasions also, and it was not the accused who had either by any of his acts, verbal or otherwise, taken or enticed the victim away out of lawful custody of her guardian."
16. From the above mentioned respected judgments it is amply clear that for a successful prosecution for the offence u/s 363 IPC, there must be an overt act as an active contribution on the part of the accused which shall induce the victim to abandon the guardianship of her legal guardian and accompany the accused. In order for an act to qualify as "taking", there has to be active contribution on the part of the accused, a minor if on her own leaves the guardianship and goes along with the :11: accused, then that particular act cannot be termed as kidnapping within the meaning of Section 361 IPC as the intention of the legislature cannot be to punish a person who merely allows a minor to accompany with himself/herself.
17. Coming to the facts of the instant case, it is observed that the complainant and the IO are not examined in the instant case as they had expired. Further, PW 2 the victim girl Sunita in her examination in chief had categorically stated that she went with the accused on her own free will. Thus the prosecution in the instant case has not been able to establish any over tact or conduct of the accused which indicates that the accused in any manner took the minor girl Sunita out of the lawful guardianship. Therefore, the essential ingredients of the offence punishable u/s 363 IPC are not established beyond reasonable doubt in the instant case and accordingly, accused Manoj stands acquitted for offence punishable u/s 363 IPC.
Let a copy of the Judgment be supplied to the accused, free of cost.
Pronounced in the open court on 21.08.2023.
Judgment contains total 11 pages, each signed by the undersigned.
(AKSHAY SHARMA) MM-02/SE/Saket/ND 21.08.2023