Delhi District Court
State vs Kamil Page No. 1 on 4 May, 2016
IN THE COURT OF SH.ATUL KUMAR GARG, ASJ - 03
(CENTRAL), TIS HAZARI COURTS
SC No. 84/15
State
..... Complainant
Versus
Kamil,
S/o Late Ekram,
R/o P-310, Shakur ki Dandi,
Kamla Market,
Delhi.
....... Accused
FIR No.: 159/12
PS: Darya Ganj
U/S: 363/366 of IPC
Date of Institution: 07.04.2014
Date of Arguments: 04.05.2016
Date of Judgment : 04.05.2016
JUDGMENT
1. On 30.07.2012 at about 3.00 pm, one Shabnam had appeared in the PS Darya Ganj stating that his daughter X (hereinafter referred as Prosecutrix) aged 17 years studying FIR No. 159/12 State Vs Kamil Page No. 1 in Sarvodya Kanya Vidyalaya, Bulbuli Khan, Asaf Ali Road had gone to her school at about 7.00 am on 28.07.2012. She stated that she did not return to the home upto late night of 28.07.2012. She had enquired about her daughter from her relatives as well as neighbours. She came to know that one Kamil aged about 23 years who has been residing in the same locality had enticed away his daughter. Kamil was also found missing from his house. The above said statement was endorsed by the police and case was registered for the offence punishable under Section 363 of IPC. Police had tried to search both the prosecutrix as well as the boy. On 01.08.2012, the prosecutrix and the accused had surrendered in the police station. Thereafter, the prosecutrix was medically examined and accused was arrested. After completion of the investigation, police filed the charge sheet in the court.
2. After being heard, vide order dated 16.02.2015, FIR No. 159/12 State Vs Kamil Page No. 2 accused was charged for the offence punishable under Section 363/366 of IPC. Accused pleaded not guilty and claimed trail.
3. In order to substantiate the charge, prosecution has relied upon as many as thirteen witnesses namely Smt. Sabnam, Sitara, Md. Shahnawaz, Nasreen, Reshma, Ct. Manoj, Ct. Sachin, W/Ct. Poonam, W/Ct. Suman, Ct. Satish, Ct. Monit, ASI Bodh Raj and SI Manoj Kumar. In fact, the prosecution has examined two witnesses ie., prosecutrix and the Shabnam examined as PW 1 and PW 2 respectively. Thereafter, the accused has moved an application for confessing his guilt. Considering the above facts, evidence was closed. Accused was examined under Section 313 of Cr.PC wherein he had stated that he had taken the prosecutrix with him but he was not aware that she was minor. She got married with prosecutrix lateron. He had prayed that the lenient view be taken, considering FIR No. 159/12 State Vs Kamil Page No. 3 the fact that he had got married with the prosecutrix and the fact that at that time, the prosecutrix was merely three days less in completing the 18 years of age.
4. On behalf of the State, Ld. Addl. PP Sh. Alok Saxena had presented the fact stating that the prosecution has proved its case from the evidence of PW 1 and PW 2 for the offene punishable under Section 363/366 of IPC. PW 1 deposed that on 28.07.2012, she was less than of 18 years. On that day, she along with accused Kamil went to Lodhi Garden. They both sold their mobile phones and thereafter they both went to a mosque near Red Fort for Nikah. However, the Nikah could not be performed for want of money as Qazi demanded money from them and they had no money to give him Thereafter, accused took her to Bijnaur to the house of his Fufa and they remained there for three days. Thereafter, uncle of accused came there and took them to Delhi. They both were taken to PS Darya FIR No. 159/12 State Vs Kamil Page No. 4 Ganj by Uncle of accused on 01.08.2012. Thereafter, police obtained her statement. They remained at the PS on that day. Next day, police took them to the Court. She had identified her signature on the statement recorded under Section 164 of Cr.PC. She further admitted that accused used to converse through phone and they used to meet at Lodhi Garden. She further admitted that she has stated in her statement in Mark A to the police that in the mornign of 29.07.2012, son of uncle of Kamil took them to Madrasa where they asked about the procedure of Nikha at Madarsa and Rs. 7,000/- were demanded by the Madrsa. Ld. Additional PP further submitted that Shbnam, the mother of the prosecutrix has also stated so and she had handed over the copy of the birth certificate as well as the her matriculation certificate which are marked as P2/1 and P2/2 which she had identified. He further submitted that even the accused had admitted his guilt of taking or enticed FIR No. 159/12 State Vs Kamil Page No. 5 away the prosecutrix.
5. On the other hand, Ld. Counsel for the accused stated that technically the offence has been proved, otherwise prosecutirx with her own consent had gone with the accused. She was only less than three days of attaining the age of eighteen years. He further submitted that now both have married with each other and living happily. He further submits that prosecutrix is present in the court itself which buttressed his contention. He submits that lenient view be taken.
6. I have heard the arguments at bar, perused the record and gone through the evidence brought and examined by the prosecution. In all the prosecution has examined two witnesses including the prosecutrix. Here, accused has been charged for the offence punishable under Section 363/366 of IPC.
7. Before going further, the text of Section 363 and 366 FIR No. 159/12 State Vs Kamil Page No. 6 of IPC are required to be reproduced herein:-
Section 363:- Punishment for kidnapping.- Whoever kidnaps any person from [India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 366.- Kidnapping, abducting or inducing woman to compel her marriage, etc.- Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing ti to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; [and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid].
Section 363 of IPC provides the punishment for the offence of kidnapping. Offence of kidnapping has been defined under Section 361 IPC.
8. In order to bring home the guilt of the offence FIR No. 159/12 State Vs Kamil Page No. 7 punishable under Section 361 of IPC, the prosecution is required to prove that the prosecution is under 18 years of age at the time of committing the offence and she was taken or enticed or allured by the accused and in pursuance there of she was taken without the consent of her guardianship. Here, from the evidence of PW 1 and PW 2, prosecution is able to prove the fact that the prosecutrix is minor at the time of commission of offence. As per documents Ex. P2/1, Prosecutrix was born on 01.08.1994 and the offence was committed on 28.07.2012. She is just three days less in completing of the 18 years of age. From the testimony of PW 1 and PW 2, prosecution is further able to prove that the accused had taken the prosecutrix without the consent of her guardianship. The prosecution has proved it case under Section 363 of IPC. So far so, the Section 366 of IPC is concerned, the same is not attracted because the prosecutrix has gone with the accused with her FIR No. 159/12 State Vs Kamil Page No. 8 free will.
9. In view of the above discussion, I am of the opinion that the prosecution has proved its case against the accused for the offence punishable under Section 363 of IPC. Accordingly, accused is convicted for the offence punishable under Section 363 of IPC.
Announced in open court On 04.05.2016 (ATUL KUMAR GARG) Addl. Sessions Judge-03 (Central) Tis Hazari Courts, Delhi.
FIR No. 159/12 State Vs Kamil Page No. 9 State Vs Kamil FIR No. 159/12 PS: Darya Ganj 04.05.2016 Present: Sh. Alok Saxena, Ld. Addl. PP for the State.
Accused is present on bail.
Sh. R.D. Sahni, Ld. counsel for the accused. Vide my separate order dictated and announced in open court, accused is convicted for the offence punishable uder Section 363 of IPC and sentenced the for the offence punishable under Section 363 of IPC for the period which he had already undergone. File is consigned to record room.
(ATUL KUMAR GARG) Addl. Sessions Judge-03 (Central) Tis Hazari Courts, Delhi.
FIR No. 159/12 State Vs Kamil Page No. 10