Delhi District Court
State vs Aadil // Fir No.86/14, Ps - ... on 21 August, 2014
1
IN THE COURT OF SHRI DEEPAK GARG: ADDITIONAL SESSIONS
JUDGE-01: NORTH: ROHINI:DELHI
SESSIONS CASE NO:101/14.
FIR NO.86/14.
PS :JAHANGIRPURI.
U/S:363/376 IPC & 4 OF POCSO ACT.
STATE
VERSUS
AADIL S/O. SHRI KALLU
R/O. H.NO.C-868, JAHANGIRPURI,
DELHI ......ACCUSED
Date of Institution:07.05.2014
Date of Argument:21.08.2014
Date of Decision:21.08.2014
JUDGMENT
1. Accused has been facing trial u/s. 363/376 IPC & 4 OF POCSO Act on the allegations that on 04.02.2014 at time and place not known, he had enticed the prosecutrix S (name withheld) out of the keeping of lawful guardianship of her parents without their consent and kidnapped her to compel her for marriage or that she may be forced or seduced to illicit intercourse with him and thereafter had sexual intercourse with her.
2. The brief facts of the prosecution case are that, on 04.02.2014, Shri Suresh Kumar s/o.Shri Mahender Singh, R/o. C-942, Jahangirpuri, came to the police station and lodged the complainant with the police stating that his daughter namely S (identity withheld) was missing since 7.15am and that she has left home for her tuition and that she has not come back. He had searched his daughter to all his relatives, STATE VS AADIL // FIR NO.86/14, PS - JAHANGIRPURI// U/S. 363/376 IPC & 4 POCSO ACT PAGE 1 OF 6 2 but in vain. He raised suspicion upon one boy namely Aadil residing in his gali, stating that he might have enticed his daughter. On the basis of the statement, police registered the present FIR u/s. 363 IPC and the investigation was handed over to SI Narender.
3. Police made its efforts to trace the complainant's daughter but could not trace her. On 06.02.2014, IO came to know that, prosecutrix S and suspect were seen in the area of Ashok Vihar and thereafter search was made and during search IO came to know that both prosecutrix S and suspect Aadil came near the PS, she was medically examined at BJRM Hospital. Accused Aadil was apprehended and he was medically examined.
4. On 07.02.2014 statement of S was got recorded u/s., 164 Cr.P.C and on the basis of said statement, Section 376 IPC and Section 4 of POCSO Act was also added in the FIR and after completion of the investigation, police filed chargesheet u/s. 363/376 IPC & Section 4 of POCSO Act filed before the court through SHO concerned.
5. After compliance of the provisions of Section 207 Code of Criminal Procedure, Ld. MM committed the case to the Court of Sessions. Thereafter, it was assigned to the predecessor of this court.
6. Vide order dated 01.07.2014, charges for offence u/s. 363/376 IPC & Section 4 of the POCSO Act was framed against accused Aadil, to which accused pleaded not guilty and claimed trial.
7. Prosecution in support of its case examined Victim S, her mother Smt. Neetu and Shri Suresh Kumar as PW1, PW2 and PW3 respectively. After examination of the said witnesses it appeared to the Court that no purpose will be served by examining the remaining witnesses and, hence, prosecution evidence was closed by the Court.
8. Victim S (PW1) has not supported the case of the prosecution. As per the case of the prosecution, on 04.02.2014, accused Aadil had enticed S and had taken her to Ajmer and he had sexual relations STATE VS AADIL // FIR NO.86/14, PS - JAHANGIRPURI// U/S. 363/376 IPC & 4 POCSO ACT PAGE 2 OF 6 3 with her and thereafter, she was brought back to Delhi. However, in her deposition before the court as PW1, she has not stated any such thing in Court. She has deposed that on 04.02.2014 at about 7:30am, she was sitting outside the Monta Park and at about 12:30pm, she returned from the Monta Park and came to the school and after school timing she remained there and she was weeping, an auto driver, who took her to Monta Park, was passing from there and he inquired from S. Thereafter, said auto driver again asked her to board on his auto and S boarded the said auto and made her roam in the auto here and there till 5.30pm/5.45pm. The said auto driver wanted to take her Lucknow, but S refused to accompany him. In the meantime, S picked up the phone of said auto driver and made call to her friend Aadil. Then Aadil came there after 20 minutes and he made her understand to return to her house number of times till night, but she was very much annoyed with her family members and decided not go to her house. Thereafter S and Aadil went to Ajmer. Thereafter, they returned to Delhi and police apprehended both of them. Police took them to the police station and she returned back to her house. Thereafter, police took her for her medical examination, but she refused for her medical examination. Her statement was also recorded before ld. MM u/s. 164 Cr.P.C., in which she has stated that she had gone with Aadil on her own.
9. Since she had not supported the case of the prosecution, she was cross examined by ld. Addl. PP for the State and despite his lengthy cross examination, nothing incriminating has come out against accused.
10.Smt. Neetu (PW2) and Shri Suresh Kumar (PW3) are the parents of the victim S. They are the formal witnesses.
11. After examination of these witnesses, it appeared to the Court that no purpose will be served by examining the remaining witnesses, because the testimony of remaining witnesses are only related to the STATE VS AADIL // FIR NO.86/14, PS - JAHANGIRPURI// U/S. 363/376 IPC & 4 POCSO ACT PAGE 3 OF 6 4 investigation of this case and hence, PE was closed by the Court.
12. As stated above, the accused has been charged for the offence u/s.
363 IPC and Section 4 of the POCSO Act and in alternative u/s. 376 IPC. Section 363 IPC provides punishment for kidnapping. Kidnapping has been defined u/s. 361 IPC. The object of Section 361 IPC is to protect children of tender age from being abducted or seduced for improper purposes and also to protect the rights of parents and guardian having lawful charge or custody of minors or insane persons. The gravamen of this offence lies in the taking or enticing of the minor under the ages specified in the Section out of the keeping of the lawful guardian without the consent of such guardian. It was so held in State vs Raja Ram AIR 1973 SC 819.
13. Hence taking or enticing is an essential ingredients of Section 361 IPC.
The taking need not been by force actual or constructive and it is immaterial whether the girl consents or not. There must be a taking of the child out of the possession of the parents. The word "take" means to cause to go to escort or to get into possession. Inducement of the accused to make the girl leave her home amounts "taking" within the meaning of this Section. It has been held in Varadrajan's case AIR 1965 SC 942 that 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 persons, the accused cannot be said to have taken her away from the keeping of her lawful guardian. No kidnapping is involved when the girl leaves her father voluntarily or voluntarily goes with the accused without any persuasion or inducement.
14. Bramwell, B, in stating the law on the subject, said:"I am of opinion that if a young woman leaves her father's house without any persuasion, inducement or blandishment held out by her by a man, so that she has got fairly away from house, and then goes to him, although it may his moral duty to return her to her parents' custody, yet is not doing so is no infringement of this Act of Parliament for the Act STATE VS AADIL // FIR NO.86/14, PS - JAHANGIRPURI// U/S. 363/376 IPC & 4 POCSO ACT PAGE 4 OF 6 5 does not say that he shall not take her away".
15. In Thakorelal D Vadgama AIR 1973 SC 2313, it has been held that the two words "takes" and "entices" has used u/s. 361 IPC are in our opinion, intended to read together so that each takes to some extend its colour and content from the other. The statutory language suggests that if the minor leaves her voluntarily home completely uninfluenced by any promise, offer or inducement emanating from the guilty party, then the latter cannot be considered to have committed the offence as defined u/s. 361 IPC. If I apply the above stated law in the present case in my view ingredient of Section 361 IPC are not satisfied.
16. In the present case it is admitted case that, prosecutrix S was about 16½ years of age at the time of the incident and hence, she was on the verge of attaining majority and she left her parental home completely uninfluenced by any promise, offer or inducement emanating from the accused. She has categorically stated that, she had run away from her house since her Chacha used to beat her and she had pressurized Aadil to go with her. She has further deposed that she had called Adil at the said place and Adil after coming there tried to make her understand to return to her house, but it was she who was not interested in going back home. She has further deposed that Aadil had not committed any wrong act with her and she had refused for her internal medical examination, since nothing wrong had happened with her.
17. In view of above since the essential ingredients of Section 361 IPC i.e. "taking" or "enticing", as discussed above, is not proved in the present case on the part of the accused. Hence, charge under Section 363 IPC cannot be sustained. Further, as discussed above, she has not whispered about any penetrative sexual assault having been committed upon her by accused Aadil and hence, charge u/s. 4 of the POCSO Act and in alternative Section 376 IPC cannot be sustained.
18.Considering the abovesaid facts and circumstances, I hold that STATE VS AADIL // FIR NO.86/14, PS - JAHANGIRPURI// U/S. 363/376 IPC & 4 POCSO ACT PAGE 5 OF 6 6 prosecution has miserably failed to prove the case against the accused. In view of aforesaid fact, accused Aadil is acquitted. He is in JC. He be released forthwith, if not required in any other case. Case property, if any, is confiscated to the State.
19.However, accused is directed to furnish his personal bond in the sum of Rs.10,000/- with one surety of like amount in compliance of provisions of Section 437-A Cr.P.C. within ten days. File be consigned to record room.
ANNOUNCED IN OPEN COURT (DEEPAK GARG)
ON 21.08.2014. ADDL. SESSIONS JUDGE -01 (NORTH)
ROHINI:DELHI.
STATE VS AADIL // FIR NO.86/14, PS - JAHANGIRPURI// U/S. 363/376 IPC & 4 POCSO ACT PAGE 6 OF 6