Delhi District Court
("State vs Mustafa") "Acquitted" Page 1 Of 11 on 9 February, 2011
Case No.10/3: U/s 363/365 IPC: PS Anand Parbat DOD: 09.02.2011 IN THE COURT OF VINOD YADAV: CHIEF METROPOLITAN MAGISTRATE: DELHI FIR No.: 348/2003 PS: Anand Parbat U/s 363/365 IPC Unique ID No.: 02401R0064132011 J U D G M E N T:
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(a) S.No. of the case : 10/3
(b) Name of complainant : Sh. Shyam Lal Badal s/o Late Sh. Baladin Badal R/o H. No. 52/36J, Gali No.16, Nai Basti, Anand Parbat, New Delhi.
(c) Date of commission of offence : 21.11.2003
(d) Name of the accused : Lal Babu Mehto
S/o Late Sh. Balgovind Mehto
R/o Vill Madhavpur, P S Kurhani,
Distt. Muzaffarpur (Bihar).
(e) Offence complained of : U/s 363/365 IPC
(f) Plea of accused : Pleaded not guilty
(g) Final arguments heard on : 09.02.2011
(h) Final Order : Acquitted
(i) Date of such order : 09.02.2011
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1. BRIEF FACTS & REASONS FOR SUCH DECISION:
This case was received in this court on 03.01.2011 from the court presided over by Ms. Twinkle Wadhwa, Ld. MM, Delhi as the Ld. MM in her wisdom thought it fit case where she could not have adequately sentenced the accused in this case.
2. After receipt of this file, final arguments in the matter were heard afresh.
3. The facts of the case in brief are that one Sh. Shyam Lal Badal lodged a complaint on 23.11.2003, in police station Anand Parbat interalia stating therein that his daughter Ms. Pooja, who had gone to attend her tuition class in the evening on 21.11.2003, did not return back home. He expressed his suspicion upon the accused, to have enticed her to run away with him. On the basis of the aforesaid complaint, FIR in the matter was registered.
4. Ms. Pooja was later found with accused in Bihar, and she was brought back to Delhi and on 01.12.2003, the accused was arrested in the matter. The accused stood chargesheeted for offences punishable u/s 363/366 IPC.
5. After filing of the chargesheeet in the court, documents were supplied to the accused and after hearing arguments on charge on 23.02.2004, ("State V/s Mustafa") "Acquitted" Page 2 of 11 Case No.10/3: U/s 363/365 IPC: PS Anand Parbat DOD: 09.02.2011 charge u/s 365 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
6. In order to prove charges against the accused, the Prosecution examined 8 witnesses, whereafter the PE in the matte was closed and statement of accused u/s 313 CrPC was recorded wherein he stated that Ms. Pooja was a fairly mature girl. She voluntarily abandoned her home and forced him to go to Bihar. She used to give emotional threats to him of committing suicide, in case he did not marry her. At the time of abandoning her home, she had taken Rs. 6,000/ from her home. Before that, he had courtship with her wherein she had written 5060 love letters to him, out of which 10 letters are there on record. She claimed herself to be major in the said love letters. She married him out of her own free will. The entire traveling and hotel expenses were borne by her. It was further stated that he did not kidnap her. In order to prove his defence, he examined one Manoj Mehto as DW1 and handwriting Expert Deepak Jain as DW2.
7. The Ld. Defence counsel Sh. P.K. Sharma, advocate has cited a number of judgments to put forward the points that there is nothing on record which even remotely suggests that Ms. Pooja (PW1) was enticed by the accused to run away with him. It is further argued that PW1 was a mature lady whereas accused is an illiterate and rustic person.
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8. Per contra, Ld. APP has very vehemently argued that PW1 was admittedly a minor on the date of incident and as such she was not capable of giving valid consent in going alongwith the accused. It is further argued that accused had kidnapped PW1 from her lawful guardianship and as such offence punishable u/s 365 IPC stands proved against him.
9. Before appreciating the arguments advanced at Bar, it would be appropriate to have a brief scrutiny of the evidences recorded in the matter.
10. PW1 Ms. Pooja Badal in her evidence stated that on 21.11.2003, in the evening, she had gone to attend her tuition class in gali No. 7, Than Singh Nagar, the accused proposed her for marriage on the way but she did not pay any heed thereto. Lateron, when she was returning from her tuition class, the accused repeated his proposal and thereafter forcibly took her with him to Hajipur, Bihar, where he performed marriage with her. She further stated that accused did not make any physical relations with her. Thereafter, her maternal uncle took her from Hajipur to Delhi. She was throughly cross examined by the defence. She stated her date of birth to be 05.01.1989. She further stated that accused was on speaking terms with her and he used to visit her house regularly and her parents knew about the same. She further stated that on her way to tuition class accused used to meet her daily and used to talk to her and she used to tell all this to her parents. On a specific question by the defence that on the date of incident when the accused had proposed to her for marriage, whether she ("State V/s Mustafa") "Acquitted" Page 4 of 11 Case No.10/3: U/s 363/365 IPC: PS Anand Parbat DOD: 09.02.2011 had raised any alarm. She answered this question in negative. She further stated that accused intimidated her as a consequence whereof, she went with him and on her way she did not tell about the said intimidation to anybody. She continued that she was taken to Hajipur, Bihar in a train. The traveling ticket was purchased by the accused but the payment was made by her. She further admitted that when accused had gone to purchase the ticket at the railway platform, she was standing allalone there. She further stated that at the time of her marriage with the accused, the brother, Bua and parents of the accused were present. She also admitted of having written love letters to the accused. She further admitted that accused is an illiterate and poor person whereas she is literate and she understand the consequence of going alongwith the accused very well. She further admitted that her father had knowledge about her relations with the accused. At the fag end of her cross examination, she categorically admitted that she had gone with the accused on her own free will and the accused had not enticed her.
11. PW2 Sh. Shyam Lal Badal, the father of PW1 has not stated much in his evidence except for producing the document of age of the PW1 which even otherwise is not disputed by the defence.
12. PW3 Sh. Mahender, the maternal uncle of PW1 has stated in his evidence that he along with the police had brought PW1 and accused from Bihar to Delhi.
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13. PW4 Smt. Usha Badal, the mother of PW1 has also deposed on the lines of PW2.
14. PW5 Dr. Seema Sharma in her evidence has stated that on 30.11.2003, PW1 was produced before her and on examination of PW1, she found that there was no internal or external injury on her body and her hymen was intact.
15. PW6 HC Raj Pal was the Duty Officer, at the relevant time in P S Anand Parbat, who proved the case FIR in the matter.
16. PW7 Dr. Renu Sehgal, in her evidence stated that she did not conduct any ossification test upon PW1 as the same was not asked by the police.
17. PW8 Ct. Shiv Shankar, PW8 (wrongly written) SI Jitender Tiwari and PW10 Ct. Ved Prakash are the witnesses of investigation and filing of chargesheet whereas PW9 Mohit Chadda proved the date of birth of the prosecution
18. DW1 Manoj Mehto, in his evidence stated that accused Lal Bahadur and PW1 were in love relation for almost two years. The accused was a regular visitor in the house of PW1. He also stated that PW1 used to write love letters to the accused, who was illiterate and he used to read out those letters to the ("State V/s Mustafa") "Acquitted" Page 6 of 11 Case No.10/3: U/s 363/365 IPC: PS Anand Parbat DOD: 09.02.2011 accused. He proved some of the love letters written by PW1 to the accused. He further stated that on the date of accident, PW1 had carried Rs.6,000/ from her house and had gone with the accused to Bihar to get married with him.
19. DW2 Deepak Jain, the handwriting Expert, stated about his opinion on the love letters written by PW1 to accused and stated that those were in the handwriting of PW1. Even otherwise, PW1 has categorically admitted the said love letters. So the evidence of this witness is somewhat admitted by prosecution.
20. In order to prove charge against the accused for offence punishable u/s 365 IPC, the prosecution is duty bound to prove the factum of kidnapping of PW1 by accused. It has to be specifically proved that the accused enticed PW1 or took her away from the lawful guardianship of her parents.
21. In this case, the testimony of PW1 and statement of accused u/s 313 CrPC are very important. PW1 in her evidence has categorically admitted that accused had not enticed her to go alongwith him to Hajipur, Bihar and she had gone alongwith him of her own free will. It is also apparent on the face of record that PW1 had paid for the train travel as she was carrying money with her. As per her testimony, she was studying in class 10th at that time and was approximately of the age of 15 years. It does not appeal to senses that a child of that age would carry that much of money, particularly when the child is a girl ("State V/s Mustafa") "Acquitted" Page 7 of 11 Case No.10/3: U/s 363/365 IPC: PS Anand Parbat DOD: 09.02.2011 child. This witness has further categorically admitted that the accused even did not try to make any physical relations with her. She has further admitted having written several love letters to the accused. I have gone through the letters, which are there on record, which show clearly that this witness was fairly mature and understood the consequences of her act and she was deeply in love with accused who was a simpleton illiterate, inarticulate and poor person. It is also apparent from the reading of these letters that this witness gave impression to the accused that she was a major. PW1 even otherwise is not a trustworthy witness as firstly, she betrayed the accused despite the fact that she had herself forced him to take her away then secondly lying on oath in her statement u/s 164 CrPC before a Magistrate, wherein she outrightly denied of having solemnized marriage with the accused in Bihar whereas in her evidence before this court, she has admitted that she had married the accused and had performed all the ceremonies of the marriage. I have also gone through the photographs of her marriage, which are there on record wherein she appears to be happy and there is no sign of any kind of discomfort on her face. There is further no evidence on record that she was subjected to any kind of pressure, inducement or promise by the accused for running away from her house, rather it is apparent that she was mature enough and she had voluntarily abandoned her house. Had she been under any kind of threat from the accused then she could have raised alarm even during her train journey from Delhi to Hajipur, Bihar, which admittedly, she did not do, thus giving strong presumption that she was the willing party when she had gone with the accused on her own and as such no taking out of her from her lawful ("State V/s Mustafa") "Acquitted" Page 8 of 11 Case No.10/3: U/s 363/365 IPC: PS Anand Parbat DOD: 09.02.2011 guardianship has been made out in this case.
22. Now, let us have scrutiny of some of the case law on the subject.
In "State of Karnataka vs. Sureshbabu", 1994 Crl.
L.J.1216 (1), it was found that the girl went with the accused voluntarily. It was held by the Hon'ble Supreme Court that the requirement of Section 366 IPC is that taking or enticing away a minor out of the keeping of the lawful guardianship was an essential ingredient of the offence of kidnapping. It was hold that in such a case, it is difficult to held that the accused had taken her away from the keeping of he lawful guardian and something more has to be shown in a case of this nature, like inducement.
In "Mahabir vs. State", 55 (1994) DLT 428, the appellant and the prosecutrix were known to each other. The appellant took the prosecutrix to a place outside Delhi where they stayed for about fifteen days and had sexual intercourse with each other. The appellant was convicted under sections 366 and 376 of IPC, however Hon'ble High Court of Delhi noticed that she had gone to Railway Station, had stood there with the appellant who also went to purchase tickets and then she had travelled with him a a compartment shared by other persons. She had then gone to a house in a tonga and yet she did not lodge any protest and made no attempt to flee despite having ample time and ("State V/s Mustafa") "Acquitted" Page 9 of 11 Case No.10/3: U/s 363/365 IPC: PS Anand Parbat DOD: 09.02.2011 opportunity. The Hon'ble High Court further noted that since she was all along a willing party, the appellant was acquitted of both the charges against him. Thus, despite the prosecutrix being less than eighteen years of age, the appellant was acquitted not only of charge under Section 376 but also of the charge under Section 366 of IPC.
In "Piara Singh vs. State of Punjab", 1998(3) Crimes 570, the Hon'ble High Court found that the prosecutrix was more than sixteen years of age at the time of this incident, though, the case of the prosecution was that she was fourteen years of old at that time. Since the Hon'ble High Court came to conclusion that no force was used in having sexual intercourse with him, the appellant was acquitted not only of charge under Section 376 IPC but also of charge under Section 366 and 366A of Indian Penal Code. In this case also, the prosecutrix was not found to be more than eighteen years of age.
In "Bala Saheb vs. State of Maharashtra", 1994 Criminal Law General 3044, it was found that the prosecutrix accompanied the appellant/accused from her village and stayed with him for two to three days. It was held that these circumstances clearly show that offence under Section 363 or 366 IPC was not made out.
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23. The case of the accused before this court stands on a much stronger footings as PW1 has herself admitted in her evidence that no promise or inducement was extended to her by the accused and she of her own volition had abandoning the guardianship of her parents in order to marry him. Therefore, the prosecution has not been able to prove charges u/s 365 IPC against the accused. Accused accordingly stands acquitted of charge.
24. Since accused was on bail, his B/B stands cancelled, surety stands discharged. Endorsement(s), if any, either on the documents of surety or of accused be cancelled forthwith. File be consigned to record room after compliance of necessary formalities.
Announced in the open court (Vinod Yadav)
on 09.02.2011 Chief Metropolitan Magistrate:
Delhi
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