Delhi District Court
State vs . Raja Ram Yadav on 17 May, 2013
State Vs. Raja Ram Yadav
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI
SC No. 50/13
ID No. 02401R0099372013
FIR No. : 24/12
Police Station : Lahori Gate
Under Section : 363/366/376 IPC
State
Versus
Raja Ram Yadav
S/o Sh. Dashrath Yadav
R/o Village- Hari Nagar,
Post Office-Mahesh Khunt,
PS-Gogari,
Distt. Khagariya, Bihar.
...............Accused
Date of Institution : 21.02.2013
Date of Committal : 08.03.2013
Date of Judgment reserved : 14.05.2013
Date of judgment : 17.05.2013
Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the
State.
Sh. Manoj Kumar Sharma, Advocate, Amicus Curiae for
the accused.
JUDGMENT
1. Briefly stated facts of prosecution case are that on February 28, SC No. 50/13 Page 1 of 18 State Vs. Raja Ram Yadav 2012 when SI Yogesh Kumar was on patrolling duty near Peeli Kothi, complainant (since she is the mother of rape victim, her identity is withheld and she is hereinafter referred to as complainant) met him and got recorded her statement alleging that her daughter aged about 16 years was missing from the house since February 01, 2012 (since she is the rape victim, her identity is withheld and hereinafter she is referred to as victim) complainant further alleged that previously also her daughter had gone from the house without intimating her but at that time, she returned of her own. However, she had also lodged a complaint at PS Lahori Gate. She further alleged that in order to search her daughter, she went to her native village in Bihar but she did not find any clue about her daughter. She had expressed her suspicion over the accused Raja Ram Yadav. On her statement, an FIR for the offence punishable under Section 363 IPC was got registered.
(ii) It was alleged that on May 11, 2012, further investigation was assigned to SI Mukesh Devi. On that day, an intimation was received that victim had returned to her house. Accordingly, victim was taken to the hospital for medical examination. However, victim and her mother refused for internal medical examination. Her statement under Section 164 Cr. P.C. was got recorded wherein she alleged that she had married with the accused. It was alleged that on December 18, 2012, accused was arrested.
2. After completing investigation, challan was filed against the accused for the offence punishable under Section 363/366/376 IPC.
3. After complying with the provisions of Section 207 Cr. P.C., case was committed to the Court of Sessions on March 04, 2013. Thereafter, case was assigned to this Court on March 08, 2013. Accordingly, case was registered as Sessions Case No. 50/13.
SC No. 50/13 Page 2 of 184. Vide order dated March 30, 2013, a charge for the offence punishable under Section 363/376 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
5. In order to bring home the guilt of accused, prosecution has examined as many as following 6 witnesses:-
PW1 Ms. Rani Sharma, Principal of School, proved the date of birth of the victim.
PW2 Victim, herself
PW3 Complainant, mother of victim
PW4 ASI Surender, duty officer, proved the FIR
PW5 SI Yogesh Kumar, 1st investigating officer
PW6 SI Vineet Kumar, 2nd investigating officer
6. Prosecution closed its evidence on May 03, 2013. After culmination of prosecution evidence, accused was examined under Section 313 Cr. P.C. wherein he took the plea that victim had married with him voluntarily and he has a son from the victim. He also requested that victim be released from Nirmal Chhaya as victim wanted to live with him and further requested that he and victim be protected from the mother of victim.
However, he refused to lead evidence in his defence.
7. Learned counsel appearing for the accused sagaciously contended that the prosecution case is based on the sole deposition of victim i.e. PW2 but she did not support the prosecution case in any manner by deposing that she had married with the accused in Delhi and when accused did not return from his native village. She made a call to the accused and asked him to reach Khagariya, Railway Station; and SC No. 50/13 Page 3 of 18 State Vs. Raja Ram Yadav thereafter, she herself went there. Accordingly, accused met her and took her to his house. It was submitted that accused and PW2 had maintained physical relations being husband and wife. It was submitted that since the victim was above 15 years of age, thus, no offence is made out under Section 375 IPC. Similarly, there is no allegation that accused had enticed the victim in any manner, Thus no offence is made out against the accused for the offence punishable under Section 363 IPC.
8. Per contra, learned Additional Public Prosecutor refuted the said contentions by arguing that since the victim was below 16 years of age, accused had committed the offence of rape as well as kidnapping.
9. I have heard rival submissions advanced by counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions. It is pertinent to state that no case law was cited by the counsel for either parties.
10. It is admitted case of the prosecution that the date of birth of victim (PW2) was January 04, 1997 and alleged incident had taken place on February 01, 2012. Thus, victim was above 15 years of age at the time of alleged incident.
11. At the outset,it is pertinent to state that accused in his statement recorded under Section 313 Cr. P.C. admitted that he has a son from the victim as victim is his wife and victim had married with him voluntarily. In other words, accused has admitted sexual intercourse with the victim but took the plea that victim is his wife and she had married with him voluntarily. Now question arises as to whether accused had performed sexual SC No. 50/13 Page 4 of 18 State Vs. Raja Ram Yadav intercourse with the victim being his wife or not. If accused fails to establish the marriage, the act of accused i.e. sexual intercourse with the victim would amount to rape under sixth clause to Section 375 IPC, which runs as under:
375. RAPE :- A man is said to commit "rape" who, except in the case hereinafter excercised, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-
Sixthly- With or without her consent, when she is under sixteen years of age.
Exception:- Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
(emphasis supplied)
12. Before coming to the facts of the instant case, I prefer to discuss the judgment Courts of its own motion (Lajja Devi) v. State in W.P. (Crl. No. 338/2000) decided by the Hon'ble High Court of Delhi on July 27, 2012. In the said judgment, Court discussed the status of a marriage where the girl is below 18 years of age. In the said case, age of the girl was just above 13 years and she made a statement under Section 164 Cr.P.C. that she had married with the accused of her own volition. The relevant paragraphs of the judgment are reproduced as under:
"29. We would like to mention that child marriage existed historically in India and over a period of time it was perceived to be a wrongful practice. The legislature stepped in more than 80 years ago when the CMRA (popularly known as the Sarda Act) was enacted with the objective of eliminating the practice of child marriage. It forbade the marriage of a male with less than 21 years and female with less than 18 years of age. However, the penal provisions of the Sarda Act did not invalidate the effect of marriage. It laid down punishment for male adult below twenty one years of SC No. 50/13 Page 5 of 18 State Vs. Raja Ram Yadav age and for male adult above twenty one years of age who contracted a child marriage and also for the person, who performed, conducted or directed a child marriage. Some amendments were carried out in this Act but it was felt that it was not serving any purpose. It is for this reason that in 2006, the Prohibition of Child Marriage Act was passed by the Parliament which is before us in the present form. The Statement of Objects and Reasons of the PCM Act, 2006 have been quoted above. The salient features of the Bill, which culminated in the enactment of the PCM Act, 2006 are as follows:-
"(i) To make a provision to declare child marriage as voidable at the option of the contracting party to the marriage, who was a child.
(ii) To provide a provision requiring the husband or, if he is a minor at the material time, his guardian to pay maintenance to the minor girl until her remarriage.
(iii) To make a provision for the custody and maintenance of children born of child marriages.
(iv) To provide that notwithstanding a child marriage has been annulled by a decree of nullity under the proposed section 3, every child born of such marriage, whether before or after the commencement of the proposed legislation, shall be legitimate for all purposes.
(v) To empower the district Court to add to, modify or revoke any order relating to maintenance of the female petitioner and her residence and custody or maintenance of children, etc.
(vi) To make a provision for declaring the child marriage as void in certain circumstances.
(vii) To empower the Courts to issue injunction prohibiting solemnsation of marriages in contravention of the provisions of the proposed legislation.
(viii)To make the offences under the proposed SC No. 50/13 Page 6 of 18 State Vs. Raja Ram Yadav legislation to be cognizable for the purposes of investigation and for other purposes.
(ix) To provide for appointment of Child Marriage Prevention Officers by the State Governments.
(x) To empower the State Governments to make rules for effective administration of the legislation."
30. A glance through the main provisions of the PCM Act, 2006 brings out the following scheme of the Act:-
Section 2 (a) of PCM Act defines "child" and Section 2
(b) defines "child marriage". The legislature has, however, taken care to define "minor" separately in Section 2(f), as a person who under the provisions of the Majority Act, 1875 is deemed to have not attained the age of majority.
Section 3 of the PCM Act relates to child marriages. It specifically states that a child marriage shall be voidable at the option of the contracting party to the marriage, who was a child at the time of marriage. The term "child" in Section 2(a) means a person who, if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years of age. A voidable marriage does not become void on its own or immediately when the option is exercised. It requires a decree on adjudication issued by the district court. The said decree can be only passed on a petition by a contracting party to the marriage who was a child at the time of the marriage. The petition has to be filed before or within two years of attaining "majority" (i.e. majority as defined in the Majority Act, 1875). Sub-section (2) to Section 3 states that the petition can be moved through a guardian or next friend along with the Child Marriage Prohibition Officer. The use of the term "guardian" in Section 3 (2) does cause confusion and is ambiguous. A husband under the Hindu Minority and Guardianship Act, 1956 is the guardian of the minor wife (see Section 6(c)). Obviously, the husband, in such a situation, will not and cannot act as a guardian and move a petition on behalf of his minor wife. "Guardian" in this case will SC No. 50/13 Page 7 of 18 State Vs. Raja Ram Yadav mean the natural father or the mother of the girl. Fortunately, the legislature has permitted the next friend to also move an application for annulment of marriage. Sub-section (4) to Section 3 of the PCM Act states that before passing such an order notices are required to be issued by the District Judge to the parties concerned. Sub-section (4) protects a female child, who was married, and stipulates that the district court can pass an interim or final order directing payment of maintenance to her. In case the male contracting party is a minor, his parent or guardian is liable to pay maintenance.
Section 3 of the PCM Act has to contrasted with "void" marriages mentioned in Section 12 of the same Act. Void marriages are null and void ab initio and accordingly are treated as different and not similar to voidable child marriages. As per Section 12, in three circumstances, a marriage of a minor child is to be treated as void. We record that sub-section 2 to Section 3 will not apply in case of a "child" after he has attained majority, for he or she thereafter do not have any lawful guardian.
Section 13 (2) (iv) of HMA gives the right to a wife to file a petition for dissolution of her marriage by a decree of divorce under the said Act. The said provision was introduced with effect from 27th May, 1976. It stipulates that a Hindu wife can file a petition for divorce if the marriage is solemnized before she had attained the age of 15 years and she repudiates the marriage before she attains the age of 18 years. The said right of the Hindu females to ask for divorce, does not mean that a petition before the district court cannot be filed under Section 3 of the PCM Act. PCM Act as noticed above is a secular law and is a latter enactment, which specifically deals with the problem of child marriages. Religion of the contracting party does not matter. PCM Act being a "special Act" and being a subsequent legislation, to this extent and in case there is any conflict, will override the provisions of HMA Act or for that matter any personal law. However, this should not be interpreted that we have held that a petition for SC No. 50/13 Page 8 of 18 State Vs. Raja Ram Yadav dissolution of marriage under Section 13(2)(iv) is not maintainable. Both provisions i.e. Section 13(2)(iv) and Section 3 operate, apply and have their own consequences. These are two concurrent provisions, which can be invoked by the "parties" satisfying the conditions stipulated in the two sections.
As noticed below, a Division Bench of this Court in W.P. (Crl.) 1003/2010 decided on 11.08.2010 Jitender Kumar Sharma Vs. State and Another, has been held that PCM Act is a secular law. On this aspect we respectfully agree with the view that PCM Act is a secular law. Decision of the Full Bench of Madras High Court in T. Sivakumar Vs. The Inspector of Police (supra) also accepts the said position.
32. It is distressing to note that the Indian Penal Code, 1860 acquiesces child marriage. The exception to Section 375 specifically lays down that sexual intercourse of man with his own wife, the wife not being under fifteen years of age is not rape, thus ruling out the possibility of marital rape when the age of wife is above fifteen years. On the other hand, if the girl is not the wife of the man, but is below sixteen, then the sexual intercourse even with the consent of the girl amounts to rape? It is rather shocking to note the specific relaxation is given to a husband who rapes his wife, when she happens to be between 15-16 years. This provision in the Indian Penal Code, 1860 is a specific illustration of legislative endorsement and sanction to child marriages. Thus by keeping a lower age of consent for marital intercourse, it seems that the legislature has legitimized the concept of child marriage. The Indian Majority Act, 1875 lays down eighteen years as the age of majority but the non obstante clause (notwithstanding anything contrary) excludes marriage, divorce, dower and adoption from the operation of the Act with the result that the age of majority of an individual in these matters is governed by the personal law to which he is a subject. This saving clause silently approves of the child marriage which is in accordance with the personal law and customs of the religion. It is to be specifically SC No. 50/13 Page 9 of 18 State Vs. Raja Ram Yadav noted that the other legislations like the Indian Penal Code and Indian Majority Act are pre independence legislations whereas the Hindu Minority and Guardianship Act is one enacted in the post independent era. Another post independent social welfare legislation, the Dowry Prohibition Act, 1961 also contains provisions which give implied validity to minor's marriages. The words 'when the woman was minor' used in section 6(1)(c) reflects the implied legislative acceptance of the child marriage. Criminal Procedure Code, 1973 also contains a provision which incorporates the legislative endorsement of Child Marriage. The Code makes it obligatory for the father of the minor married female child to provide maintenance to her in case her husband lacks sufficient means to maintain her.
33. The insertion of option of dissolution of marriage by a female under Section 13(2)(iv) to the Hindu Marriage Act through an amendment in 1976 indicates the silent acceptance of child marriages. The option of puberty provides a special ground for divorce for a girl who gets married before attaining fifteen years of age and who repudiates the marriage between 15-18 years.
34. Legislative endorsement and acceptance which confers validity to minor's marriage in other statutes definitely destroys the very purpose and object of the PCM Act-to restrain and to prevent the solemnization of Child Marriage. These provisions containing legal validity provide an assurance to the parents and guardians that the legal rights of the married minors are secured. The acceptance and acknowledgement of such legal rights itself and providing a validity of Child Marriage defeats the legislative intention to curb the social evil of Child Marriage.
35. Thus, even after the passing of the new Act i.e. the Prohibition of Child Marriage Act 2006, certain loopholes still remain, the legislations are weak as they do not actually prohibit child marriage. It can be said that though the practice of child marriage has been discouraged by the legislations but it has not been SC No. 50/13 Page 10 of 18 State Vs. Raja Ram Yadav completely banned.
39. As held above, PCM Act, 2006 does not render such a marriage as void but only declares it as voidable, though it leads to an anomalous situation where on the one hand child marriage is treated as offence which is punishable under law and on the other hand, it still treats this marriage as valid, i.e., voidable till it is declared as void. We would also hasten to add that there is no challenge to the validity of the provisions and therefore, declaration by the legislature of such a marriage as voidable even when it is treated as violation of human rights and also punishable as criminal offence as proper or not, cannot be gone into in these proceedings. The remedy lies with the legislature which should take adequate steps by not only incorporating changes under the PCM Act, 2006 but also corresponding amendments in various other laws noted above. In this behalf, we would like to point out that the Law Commission has made certain recommendations to improve the laws related to child marriage.
40. Be as it may, having regard to the legal/statutory position that stands as of now leaves us to answer first part of question No.1 by concluding that the marriage contracted with a female of less than 18 years or a male of less than 21 years would not be a void marriage but voidable one, which would become valid if no steps are taken by such "child" within the meaning of Section 2(a) of the PCM Act, 2002 under Section 3 of the said Act seeking declaration of this marriage as void.
48. We often come across cases where girl and boy elope and get married in spite of the opposition from the family or parents. Very often these marriages are inter- religion, inter-caste and take place in spite of formidable and fervid opposition due to deep- seated social and cultural prejudices. However, both the boy and girl are in love and defy the society and their parents. In such cases, the courts face a dilemma and a predicament as to what to do. This question is not easy to answer. We SC No. 50/13 Page 11 of 18 State Vs. Raja Ram Yadav feel that no straight jacket formula or answer can be given. It depends upon the facts and circumstances of each case. The decision will largely depend upon the interest of the boy and the girl, their level of understanding and maturity, whether they understand the consequences, etc. The attitude of the families or parents has to be taken note of, either as an affirmative or a negative factor in determining and deciding whether the girl and boy should be permitted to stay together or if the girl should be directed to live with her parents. Probably the last direction may be legally justified, but for sound and good reasons, the Court has option(s) to order otherwise. We may note that in many cases, such girls severely oppose and object to their staying in special homes, where they are not allowed to meet the boy or their parents. The stay in the said special homes cannot be unduly prolonged as it virtually amounts to confinement, or detention. The girl, if mature, cannot and should not be denied her freedom and her wishes should not get negated as if she has no voice and her wishes are of no consequence. The Court while deciding, should also keep in mind that such marriages are voidable and the girl has the right to approach the Court under Section 3 of the PCM Act to get the marriage declared void till she attains the age of 20 years. Consummation of marriage may have its own consequences.
54. As per the facts noted in paras 3-6 above, Ms.Meera is the girl in question whose date of birth is 6.7.1995. When she married Charan Singh she was 13 years of age. She had made a statement under Section 164 of the Cr.P.C. before the learned MM, Rohini that she had gone with Charan Singh of her own free will. This petition was registered on the basis of letter written by her mother Smt. Lajja Devi. During the pendency of this petition, order dated 31.7.2008 was passed permitting her to go with her parents as she desired to live with them on assurance given by her parents that they would not marry her to anyone else. She is still 17 years of age. This marriage, as per our discussion above, is voidable. Since she has not attained majority SC No. 50/13 Page 12 of 18 State Vs. Raja Ram Yadav and is residing with her parents, this arrangement would continue. When she becomes major it would be for her to exercise her right under the PCM Act if she so desires and future course of action would depend threon.
With these directions, the petition is disposed of."
(emphasis supplied)
13. In the light of the above settled proposition of law, the facts of case in hand will be analysed to ascertain as to whether victim had solemenized the marriage with accused, if yes, what was the age of victim at that time? And whether accused had any physical relation with the victim prior to marriage or not?
14. To adjudicate upon the above facts in issue, deposition of star witness of prosecution i.e. PW2, and the statement of accused recorded under Section 313 Cr. P.C. are relevant.
15. PW2 in her examination-in-chief categorically deposed that she knew the accused for the last two years and she was in love with the accused. She further deposed that she had married with the accused in a Mandir in Delhi. Thereafter, accused had left for his native village in Bihar but he did not return. Accordingly, victim made a call to the accused and asked him to come at Khagariya, Bihar, Railway Station and she herself went to Khagariya, Bihar by train. Accused met her at Khagariya, Bihar, Railway Station. Thereafter, she herself went to her matrimonial house with the accused and they started there living as husband and wife. She further deposed that she has a son from the accused. She further deposed that presently she was living at Nirmal Chhaya and she wanted to go with her SC No. 50/13 Page 13 of 18 State Vs. Raja Ram Yadav husband i.e. accused and further deposed that she did not want to go with her mother as her mother intended to solemnize her marriage with some one against her wishes. She further deposed that since some quarrel had taken place between her and accused, thus she came back to Delhi and at that time her mother took her to the police station. She further deposed that accused is her husband and she wanted to live with him only and her age is about 17 years.
16. In her cross-examination, she clarified that she went to Khagariya on her own without any inducement or any promise from the side of accused. She further deposed that she had solemnized married with the accused voluntarily or without any pressure from any corner. She further clarified that accused had not induced her in any manner and further stated that she had maintained physical relations with the accused only after marriage. Thus, from the testimony of PW2, it becomes clear that victim herself had gone to Khagariya, Bihar to meet with the accused and there was no inducement of any kind from the side of accused. She went there as she had married with the accused in a Temple in Delhi. This further proves that the victim had married with the accused of her own volition and without any inducement or pressure from the side of the accused. It is also established that victim has a son from the accused and victim still wanted to live with the accused. In view of the law laid down in case Courts of its motion (Lajja Devi) Supra. I am of the view that victim is a valid wife of the accused, however, victim has a right to exercise her option in terms of Section 3 of PCM Act 2006. Since, victim was above 15 years of age at the time of marriage and she clarified that she had maintained physical relations with the accused only after solemnization of marriage, thus, the act of accused i.e. sexual intercourse with the victim does not fall within the definition of 'rape' as defined under Section 375 IPC.
SC No. 50/13 Page 14 of 1812. Now coming to the question as to whether there is sufficient evidence on record to make out a case for the offence punishable under Section 363 IPC.
13. In order to prove the guilt of accused for the offence punishable under Section 363 IPC, prosecution is duty bound to fulfil the requirements of 'kidnapping' as defined under Section 361 IPC and same runs as under:-
"Whoever takes or entices any minor under sixteen years of age if a male, or under 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."
(emphasis supplied) Taking or enticing away a minor out of keeping of lawful guardian is an essential ingredient of the offence of kidnapping.
14. In case Parkash v. State of Haryana, AIR 2004, SC 277, it was held:-
Para 6...."The object of this section seems as much to protect the minor children from being seduced for improper purposes as to protect the rights and privileges of guardians having the lawful charge or custody of their minor wards. The gravamen of this offence lies in the taking or enticing of a minor under the ages specified in this section, out of the keeping of the lawful guardian without the consent of such guardian. The words "takes or entices any minor . . . . . . . . . . . . . . . . . . . . . . . . out of the keeping of the lawful guardian of such minor" in Section 361, are significant. The use of the word "Keeping" in the context connotes the idea of charge, protection, maintenance and control; further the guardian's charge SC No. 50/13 Page 15 of 18 State Vs. Raja Ram Yadav and control appears to be compatible with the independence of action and movement in the minor, the guardian's protection and control of the minor being available, whenever necessity arises. On plain reading of this section the consent of the minor who is taken or enticed is wholly immaterial : it is only the guardian's consent which takes the case out of its purview. Nor is it necessary that the taking or enticing must be shown to have been by means of force or fraud. Persuation by the accused person which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardian would be sufficient to attract the Section .
Para 7: "In State of Haryana v. Raja Ram (1973 (1) SCC 544) English decisions were noticed by this Court for the purpose of illustrating the scope of the protection of minor children and of the sacred right of their parents and guardians to the possession of minor children under the English Law. The decisions noticed were Reg v. Job Timmins (169 English Reports 1260); Reg v. Handley and another, (175 English Reports 890) and Reg v. Robb (176 English Reports 466). In the first case Job Timmins was convicted of an indictment framed upon 9 Geo. IV, Clause 31, Section 20 for taking an unmarried girl under sixteen out of the possession of her father, and against his will. It was observed by Erle, C. J. that the statute was passed for the protection of parents and for preventing unmarried girls from being taken out of possession of their parents against their will. Limiting the judgment to the facts of that case it was said that no deception or forwardness on the part of the girl in such cases could prevent the person taking her away from being guilty of the offence in question. The second decision is authority for the view that in order to constitute an offence under 9 Geo. IV, Clause 31, Section 20 it is sufficient if by moral force a willingness on the part of the girl to go away with the prisoner is created; but if her going away with the prisoner is entirely voluntary, no offence is committed. The last case was of a conviction under the Statute (24 and 25 Vict. Clause 100, Section 55). There inducement by previous promise or persuasion was held sufficient to bring the case within the mischief of the State. In the English Statutes the expression used was "take out of the possession" and not "out of the keeping" as used in SC No. 50/13 Page 16 of 18 State Vs. Raja Ram Yadav Section 361, I. P. C. But that expression was construed in the English decisions not to require actual manual possession. It was enough if at the time of the taking the girl continued under the care, charge and control of the parent : See Reg v. Manketelow (6 Cox Criminal Cases 143). These decisions were held to confirm the view that Section 361 is designed also to protect the sacred right of the guardians with respect to their minor wards.
Para8: "The position was again reiterated in Thakorlal D. Vadgama v. The State of Gujarat (AIR 1973 SC 2313) wherein it was, inter alia, observed as follows :
"The expression used in Section 361, I.P.C. is "whoever takes or entices any minor". The word "takes" does not necessarily connote taking by force and it is not confined only to use of force, actual or constructive. This word merely means, "to cause to go," "to escort" or "to get into possession". No doubt it does mean physical taking, but not necessarily by use of force or fraud. The word "entice" seems to involve the idea of inducement or allurement by giving rise to hope or desire in the other. This can take many forms, difficult to visualise and describe exhaustively; some of them may be quite subtle, depending for their success on the mental state of the person at the time when the inducement is intended to operate. This may work immediately or it may create continuous and gradual but imperceptible impression culminating after some time, in achieving its ultimate purposes of successful inducement. The two words "takes" and "entices", as used in Section 361, I. P. C. are in our opinion, intended to be read together so that each takes to some extent its colour and content from the other. The statutory language suggests that if the minor leaves her parental 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 in Section 361, I. P. C."
(emphasis supplied)
15. If we examine the testimony of PW2 in the light of above settled proposition of law, it would be clear that there is no scintilla of evidence to SC No. 50/13 Page 17 of 18 State Vs. Raja Ram Yadav prove the guilt of accused for the offence punishable under Section 363 IPC. PW2 in her testimony categorically deposed that she had herself made a call to the accused and asked him to reach Khagariya, Bihar, Railway Station and she herself went there by train. In her cross-examination, she clarified that there was no inducement in any manner from the side of the accused. Thus, there is no iota of evidence to show that accused had enticed the victim in any manner. Mere fact that accused had met the victim at Khagariya, Railway Station and took her to his house does not fall within the definition of 'kidnapping' as defined under Section 361 IPC. There is no other cogent evidence to prove the guilt of accused for the offence punishable under Section 363 IPC.
16. In the light of above discussion, I am of the considered opinion that prosecution has miserably failed to bring home the guilt of accused for the offence punishable under Section 363/376 IPC, thus, I hereby acquit the accused from all the charges.
17. File be consigned to record room.
Announced in the open court on this 17th day of May, 2013 (PAWAN KUMAR JAIN) ADDITIONAL SESSIONS JUDGE-01 CENTRAL/THC, DELHI.
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