Delhi District Court
S.C. No.89/10 Fir No.26/10 State vs . Gokul Kumar 1 /17 on 29 March, 2012
IN THE COURT OF SHRI RAJEEV BANSAL,
ASJ-03 (SOUTH DISTRICT), SAKET COURTS,
NEW DELHI.
S.C. No: 89/10
FIR No: 26/10
P.S : Defence Colony
U/S: 363/366 IPC
STATE
Vs.
Gokul Kumar
S/o Sh. Joga Ram
R/o Village Baans Toli,
P.O. Vijaypur, Distt. Bageshwar,
Uttarakhand.
Date of initial Institution :03.07.2010
Date of Institution in this Court :06.10.2010
Date of reserving order : 24.03.2012
Date of Pronouncement : 29.03.2012
JUDGMENT
1. Case of the prosecution is that FIR No. 26/2010 was registered u/s 363 IPC on 1.3.2010 in P.S. Defence Colony on the statement of Madan Lal, father of the prosecutrix (name withheld) regarding her missing since 2.30 pm on 28.2.2010. Her age was given as 16 ½ years. On this, the S.C. No.89/10 FIR No.26/10 State vs. Gokul Kumar 1 /17 FIR u/s 363 IPC was registered. During the course of investigation, the IO came to know that the prosecutrix and accused were living at Village - Baanstoli, PS - Vijaipur, Distt Bageshwar, Uttarakhand and when the IO reached at the house of the accused, he was told by his father that the accused and the prosecutrix have been sent back by him after proper counseling and both of them are returning to Delhi via Kathgodam Railway Station and the police recovered the prosecutrix from the possession of the accused on 7.4.2010 from Kathgodam Railway Station. Both - accused and the prosecutrix were taken to AIIMS for medical examination. Statement of the prosecutrix was recorded u/s 164 Cr PC. After completion of investigation, charge sheet was filed u/s 363/366 IPC and since the offence u/s 366 IPC was exclusively triable by the Court of Session, the matter was committed to the Sessions Court for trial. The accused was charged u/s 363/366 IPC, to which he pleaded not guilty and claimed trial.
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2. Prosecution led evidence and examined thirteen witnesses, which can mainly be put in three categories viz. medical evidences, police evidences and oral evidences. The relevant gist of the evidence of all the thirteen witnesses is as under:
3. Medical Evidence: In this category PW-3 Dr. Kamlesh Kumar, Jr. Resident AIIMS and PW-9 Dr. Reeta Mahey Sr. Resident Gynea. AIIMS, were examined by the Prosecution.
3.a PW-3 Dr. Kamlesh Kumar, Jr. Resident proved the MLC of the accused as Ex. PW-7/A which was done by Dr. Sunay Mahesh, who had left the AIIMS hospital and whose writing and signatures were identified by this witness. According to the medical report, there was nothing to suggest that the accused was incapable of performing sexual intercourse under normal circumstances.
3.b. PW-9 Dr. Reeta Mahey proved MLC of the prosecutrix as Ex. PW-1/A which was prepared by her. In S.C. No.89/10 FIR No.26/10 State vs. Gokul Kumar 3 /17 the MLC, hymen of the prosecutrix was found to be torn. She had also advised bone age estimation of the prosecutrix.
4. Oral Evidence: In this category, evidence of Prosecutrix - PW 1, PW-2 Major General M.S. Chadha, her father Madan Lal - PW-4; PW-7 Mahesh Chand Meena and Sh. Ravinder Singh the Ld. Judge - PW 12 who had recorded the statement of the Prosecutrix u/s 164 Cr. P.C. are placed.
4.a As PW-1, Prosecutrix was examined by the prosecution. She did not support the prosecution case and stated that she had gone with the accused with her free will and without any pressure. She further stated that she married with the accused in his village and was living with him.
4.b PW-2 Maj. Gen. M.S. Chadha, Retd. deposed that the prosecutrix was employed in his house as a domestic help from about 10:30 am to 1:30 pm and on 28.02.2010, she left from his house after lunch in routine. At about S.C. No.89/10 FIR No.26/10 State vs. Gokul Kumar 4 /17 3:00 pm, parents of prosecutrix had met him outside his home and inquired about prosecutrix and he informed them that she had left as usual.
4.c PW-4 Madan Lal proved lodging of missing report of the prosecutrix on 1.3.2010 as Ex. PW-4/A. He stated that on 8.4.2010 he came to know about recovery of the prosecutrix from Kath Godam Railway Station. He further stated that his daughter was taken for her medical examination but she refused for the same. Then he stated that his daughter has married with the accused and is happily living with him and he does not wish to pursue this case any further. Ld. Addl. PP put leading questions to him but could not elicit anything from him.
4.d PW-7 Mahesh Chand Meena APHI/Sub Registrar, Birth and Death MCD proved the date of birth of the prosecutrix as 6.9.1993 as per the Municipal Birth Certificate as Ex. PW-7/A.
4.e. PW-12 Sh. Ravinder Singh, Ld. Metropolitan Magistrate, Karkardooma Court admitted to have recorded S.C. No.89/10 FIR No.26/10 State vs. Gokul Kumar 5 /17 the statement of the prosecutrix u/s 164 Cr. P.C. on 8.4.2010 as Ex. PW-1/A. He further stated that he had given his certificate Ex. PW-12/B. He further stated that after recording the statement, the proceedings were sealed in an envelope and the same was sent to the concerned Court through ACMM.
5. Police Evidence: Six witnesses can be placed under this category who are PW-5 Ct. Mukesh Kumar, PW-6 Lady Ct. Manju, PW-8 Ct. Anand Ballabh, PW-10 ASI Om Prakash, PW-11 SI Ram Pal Singh and PW-13 W/Sub Inspector Saroj Bala who was I.O. of the case.
5.a. PW-5 Ct. Mukesh Kumar proved handing over of the exhibits after medical examination of accused to IO who seized the same vide Seizure Memo Ex. PW5/A.
5.b. PW-6 Lady Constable Manju deposed that she took the prosecutrix on 8.4.2010 for her medical examination to AIIMS and thereafter she collected the MLC and handed it over to the IO.
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5.c PW-8 Ct. Anand Ballabh deposed that on 6.04.2010, he alongwith W/SI Saroj Bala and SI Ramphal reached at Lal Quan, Uttranchal, Nainital District by train and from there they reached at Bageshwar, Baam Doly Dhapati Kanta Village. Joga Ram, father of accused Gokul Kumar told them that Gokul Kumar along with prosecutrix had left from there to Delhi. All of them then reached at Kath Godam Railway Station where both of them were found. IO arrested the accused Gokul Kumar vide Ex. PW 1/B and his personal search was Ex. PW1/ C.
5.d PW-10 ASI Om Prakash proved registration of FIR 26/10 on 1.3.2010 at 4.30 pm as Ex. PW-10/A and endorsement on rukka as Ex. PW-10/B.
5.e PW-11 SI Ram Pal Singh proved recording of statement of Madan Lal on 01.03.2010 at about 2 pm, as EX.PW4/A which pertained to missing of prosecutrix i.e. his daughter. He proved endorsement on rukka as EX.PW11/AI. He further stated that on 07.04.2010 he alongwith WSI Saroj Bala went to the house of the S.C. No.89/10 FIR No.26/10 State vs. Gokul Kumar 7 /17 accused at Village Bans Toli, Dapati Kanda, Distt. Bageshwar, Uttarakhand, where, Joga Ram father of accused met them and informed that accused had brought the prosecutrix alongwith with him for the purpose of marriage and on his counseling they had already left that house for Delhi. Then they reached at Kath Godam Railway Station where the accused and the prosecutrix were found. The accused was arrested vide Arrest memo EX.PW1/B and Personal Search memo as EX.PW1/C.
5.f PW-13 WSI Saroj Bala deposed that on 6.04.2010, she alongwith Ct. Anand Ballabh and SI Ramphal reached at Lal Quan, Uttranchal, Nainital District by train and from there they reached at Bageshwar, Baam Doly Dhapati Kanta Village. Joga Ram, father of accused Gokul Kumar told them that Gokul Kumar along with prosecutrix had left from there to Delhi. All of them then reached at Kath Godam Railway Station where both of them were found. IO arrested the accused Gokul Kumar vide Ex. PW 1/B and his personal search was Ex. PW1/C. Both were brought to Delhi and they were got medically S.C. No.89/10 FIR No.26/10 State vs. Gokul Kumar 8 /17 examined. Prosecutrix was examined in the presence of her parents and her Uncle (mama), however, she refused for her internal medical examination. She further deposed that the exhibits were deposited in the Maalkhana and on the next day, accused was produced before the concerned Court and from there, he was sent to J/C. Recording of the statement of the prosecutrix u/s 164 Cr PC was proved as Ex. PW 12/D, application moved for it was proved as EX.PW12/A, She also stated that as the prosecutrix refused to go with her parents, so, she was taken to 'Prayas' Sanstha. Father of the prosecutrix also produced one photocopy of the certificate of date of birth of the prosecutrix which is Mark-A, and the same was got verified from the MCD Office, Nazafgarh Zone, and as per the record, the date of birth of the victim is 06.09.1993. The said Birth Certificate is EX.PW13/B. After completing investigation, she filed Challan in the Court through SHO.
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6. All the circumstances appearing against the accused were put to him in his examination u/s 313 Cr P.C. which were denied by the accused. He further stated that he is innocent and has been falsely implicated and that the prosecutrix accompanied him with her consent to his village where they got married and are now living happily and that she is expecting a child also out of the wedlock soon.
7. Sh. S.K. Kain, Ld. Addl. PP has stated that the prosecution has been able to prove its case against the accused beyond reasonable doubt. It has been stated that the age of the prosecutrix on the date of offence was 16 years 3 months and 22 days as her date of birth was proved to be 6.9.1993 by PW-7 Mahesh Chand Meena and hence the offence u/s 363 IPC is clearly made out.
8. On the other hand, Ld. Defence Counsel argued that the prosecution has miserably failed to prove the case against the accused beyond reasonable doubt. He argued that it was a case of consent where the prosecutrix went S.C. No.89/10 FIR No.26/10 State vs. Gokul Kumar 10 /17 with the accused with her consent and which is clear from the conduct of the prosecutrix as she never made any complaint to anybody during the period she remained with the accused. It has also been stated that neither the prosecutrix nor the informant (i.e. her father) supported the prosecution case. Both the parties i.e. the accused and the prosecutrix have married with each other and are living happily together and in fact the couple is expecting soon a baby in the family.
9. I have heard both the ld. Counsels and minutely perused the records of the case. Vide Order dt. 12.11.2010, the accused was charged u/s 363 and 366 IPC. Both these Sections read as under:
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.
366. Kidnapping, abducting or inducing woman to compel her marriage, etc. Whoever kidnaps or abducts any woman with intent that S.C. No.89/10 FIR No.26/10 State vs. Gokul Kumar 11 /17 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 it 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 also be punishable as aforesaid.
10. Kidnapping from lawful guardianship has been defined u/s 361 IPC which inter-alia provides that whoever takes or entices any female under 18 years of age is said to kidnap such minor from lawful guardianship.
Thus taking away or enticing a minor female under 18 years of age, out of the keeping of her guardians and without their consent are necessary ingredients to be proved for establishing kidnapping within the meaning of Section 361 IPC, which is punishable u/s 363 IPC. Consent of the female so kidnapped is immaterial as it is the consent of the parents of the said female which is S.C. No.89/10 FIR No.26/10 State vs. Gokul Kumar 12 /17 required to be obtained by the accused before he removes such a female out of the custody and keeping of her parents.
11. To decide as to whether there was kidnapping, age of the person kidnapped is a relevant consideration. If the girl kidnapped is below 18 years of age, then only the provision of Section 363 IPC comes into play otherwise not. Prosecution has proved the date of birth of the prosecutrix from the Birth Certificate issued by the Municipal Corporation. PW-7 Mahesh Chand Meena, from MCD Registrar Office of Birth and Death proved the date of birth of the prosecutrix as 6.9.1993. The prosecutrix had gone missing on 28.2.2010 as per deposition of PW-4 father of the prosecutrix and PW-2 Maj. Gen. M.S. Chadha. As such, on the said date, her age was 16 years 3 months and 22 days, which is less than 18 years which is the statutory age fixed by law and any female kidnapped under that age would be covered in the sweep of Section 361 IPC irrespective of her consent. Prosecutrix has deposed that she had gone with the S.C. No.89/10 FIR No.26/10 State vs. Gokul Kumar 13 /17 accused out of her free will but as noted earlier, the offence of kidnapping becomes complete the moment a female under 18 years of age is taken out of the lawful guardianship of her parents. PW-4 Madan Lal, father of the prosecutrix has proved his statement recorded on 01.03.2010 in which he had stated that his daughter (prosecutrix) is missing since 28.02.2010. It is thus implicit that father of the prosecutrix had not consented for taking away of the prosecutrix by anybody much less the accused. It is thus proved that on the date of incident i.e. 28.2.2010 the prosecutrix was less than 18 years of age and since the parents of the prosecutrix had not consented for her being so taken by the accused, by operation of law, the accused is guilty of having kidnapped the prosecutrix from the lawful guardianship of her parents on 28.2.2010. The ingredients of Section 361 IPC are thus fulfilled and the kidnapping from lawful guardians is punishable u/s 363 IPC. The accused is thus convicted for having committed offence u/s 363 IPC.
12. However, so far as offence punishable u/s 366 IPC S.C. No.89/10 FIR No.26/10 State vs. Gokul Kumar 14 /17 is concerned, the same is not made out against the accused and the prosecution has failed to prove this offence against the accused beyond reasonable doubt. No evidence has come on record to show that the prosecutrix was kidnapped for the purpose of compelling her to marry against her will or forcing or seducing her to illicit intercourse. It is one of the essential ingredients of an offence under Section 366 IPC that the accused must have intended to compel the kidnapped female to marry her against her will with any person. As stated above, there is no evidence on record that the accused had compelled the prosecutrix to marry against her will. The prosecutrix in her deposition as PW-1 has stated that she had gone with the accused of her free will without any pressure from any side. She further deposed that she had married the accused in his village and is still living with him. She further stated that she was not compelled or enticed by the accused to marry her. PW-4 Madan Lal, father of the prosecutrix, stated in his deposition that the prosecutrix has married the accused and is living happily and S.C. No.89/10 FIR No.26/10 State vs. Gokul Kumar 15 /17 amicably with him. On being cross-examined by the Ld. Addl. PP, he stated that he cannot say as to whether the accused had enticed and lured the prosecutrix forcibly for the purpose of marriage. PW-12, Sh. Ravinder Singh, Metropolitan Magistrate, proved the statement of the prosecutrix recorded by him under Section 164 Cr.P.C wherein the prosecutrix had stated that she had gone with the accused on 28.02.2010 to Baans Toli as she wanted to marry the accused. She had further stated about her marriage with the accused on 02.03.2010. Further, she has stated that she had gone with the accused with her willingness and there was no compulsion from the accused in this regard. As such, the kidnapping for compelling the prosecutrix for marriage is not proved and hence the offence under Section 366 IPC is not made out. Hence the accused cannot be held guilty for offence u/s 366 IPC, for which he is acquitted. The accused is, however, convicted u/s 363 IPC as held earlier.
13. Copy of the judgment be given to the accused. Now to come up for arguments on the quantum of S.C. No.89/10 FIR No.26/10 State vs. Gokul Kumar 16 /17 punishment on 31.03.2012.
Announced in the open Court. (Rajeev Bansal) Dated:29.03.2012 ASJ-3/South District Saket Courts, New Delhi S.C. No.89/10 FIR No.26/10 State vs. Gokul Kumar 17 /17