Delhi District Court
State vs Amzad on 26 April, 2024
IN THE COURT OF SHRI VIPIN KHARB
ADDITIONAL SESSIONS JUDGE-07 : SOUTH-EAST DISTRICT
SAKET COURTS : NEW DELHI
SC No.166/2024
CNR No. DLSE01-003372-2024
State Vs. Amzad
S/o Sh. Bundu
R/o H.No.S-9/20
Batla House, Jamia
Nagar, New Delhi.
FIR No. : 0608/2006
Police Station : New Friends Colony
Under Sections : 366/174A IPC
Date of committal to Sessions Court : 03.04.2024
Date on which judgment was reserved : 26.04.2024
Date on which Judgment pronounced : 26.04.2024
JUDGMENT
BRIEF FACTS OF THE CASE:
1. On 17.10.2006, complainant gave complaint in writing in PS New Friends Colony regarding missing of his daughter and it is mentioned in the complaint that on 23.09.2006 at about 12:30 pm his daughters Zainab and Azra went to buy medicine from dispensary and after taking medicine his daughter Zainab told his daughter Azra that she is going for buying slippers from Ali Bazar Market but after that she did not return to home. The complaint was registered vide DD No.30 dated 23.09.2005. Later on he came to know that one boy Amzad of his colony residing in P-Block, Batla FIR No.608/2006 State Vs Amzad page 1 of 11 House is also missing since that day and he has apprehension that Amzad has kidnapped his daughter. On the basis of complaint, police registered FIR u/s 363 IPC was registered. During investigation, neither Zainab nor Amzad could be traced and untrace report was filed after getting accused Amzad declared as PO.
2. On 16.03.2024, information was received vide GD No.64A that accused has been arrested u/s. 41.1 Cr.PC by the PS Shahdara. IO interrogated and formally arrested the accused in the present case. Missing girl Zainab was traced and it was found out that she is married to the accused and out of the wedlock they are having 4 children. Her statement u/s. 164 Cr.PC was recorded and after completing the formalities, charge-
sheet was filed in the court. After complying with Sec.207 Cr. P.C, case was committed to the Sessions Court.
3. After hearing arguments, charge was framed against the accused on 03.04.2024 for the offences punishable u/s. 366/174A IPC to which accused pleaded "Not Guilty" and claimed trial and accordingly the case was fixed for prosecution evidence.
4. PW-1 Zainab deposed that she left her home in the year 2006 as her father wanted to solemnize her marriage with another person but she was in love with accused Amzad. She along with accused went to Haridwar and from there they went to the native place of accused i.e. Village Paksara, District Bijnor, U.P. where they married each other. Accused did not do any wrong act with her. She went out of her own violation and will without any FIR No.608/2006 State Vs Amzad page 2 of 11 pressure and coercion. She came back to Delhi with her husband and children and one day police official called her husband and arrested him. She correctly identified the accused during her testimony in the court.
After taking permission from the court, Ld. Addl. PP for the State cross-examined PW-1 as she resiled from the prosecution case. In her cross-examination by Ld. Addl. PP for the State, she stated that her father got her admitted in Jamai Millai Islamai School, New Delhi in 2006 and her DOB is 05.06.1989 as per 10th class certificate which is Ex.P1. She also stated that her age was 22 years old in the year 2006. Her statement u/s 164 Cr.P.C i.e. Ex.PW-1/A was recorded before Ld. M.M and denied the suggestions that accused induced her to left her home and denied all the suggestions given to her by Ld. Addl. PP for the State.
In her cross-examination by Ld. Counsel for accused, she deposed that she has told the accused that her date of birth was 22 years old and she went with the accused with her own will.
5. PW-2 Salim deposed that Ms. Zainab is his eldest daughter. She left home about 15-20 years ago without informing anyone. Thereafter, he tried to search her but could not find her and gave the missing complaint i.e. Ex.PW2/A to the police After taking permission from the court, Ld. Addl. PP for the State cross-examined PW-2 as he partially resiled the statement u/s 161 Cr.PC. In his cross-examination by Ld. Addl. PP for the State, he stated that he do not know the exact date of birth of his daughter and she was probably 19-20 years old when she left the home. He admitted that he got her admitted in Jamai Millai Islamia School. He did not admit the suggestion of FIR No.608/2006 State Vs Amzad page 3 of 11 Ld. Addl. PP that the age of victim was 17 years old when she left his house. Accused is correctly identified by PW-2 during his testimony in the court.
6. PW3 Azra deposed that she got married with Javed Ahmed in the year 2007. Zenab was her sister. On the day of incident she along with Zenab went to the dispensary for taking medicine at Batla House. After taking medicine she returned home but her sister Zainab went to buy slippers and other articles from the market. Her father asked about her sister Zenab why she has not returned to home and her father searched for her but she could not be traced then her father went to police station and lodged the report regarding missing of her sister. After about some time she informed her father that Zenab got married with accused Amzad and she was residing with him. She stated that incident was of the year 2006.
After taking permission from the court, Ld. Addl. PP for the State asked leading question from PW-3 as she did not disclose the some facts, she stated that prior to the incident she was not known the accused Amzad and she identified him during her testimony.
In his cross-examination by Ld. Counsel for accused, she deposed that after taking the medicine she returned to home but her sister Zainab had gone to purchase some articles from the market.
7. PW-4 ASI Shyam Sunder Sharma deposed that on 15.03.2024 investigation was marked to him by SHO PS New Friends Colony. The duty officer informed him that accused Amzad was arrested by the Staff PS Shahdra because he was declared PO on 23.11.2008. On 16.03.2024 he FIR No.608/2006 State Vs Amzad page 4 of 11 along with HC Deepak produced the accused before concerned Court of Saket District and he was formally arrested and interrogated and thereafter, accused was sent to JC. On 19.03.2024 he got conducted medical examination of the victim and her statement u/s 164 Cr.P.C. was recorded by concerned Ld. M.M on 20.03.2024. Thereafter, he prepared supplementary charge-sheet and filed before the court. Accused was correctly identified by PW-4 during his testimony in the court.
In his cross-examination by Ld. Counsel for accused, she denied all the suggestion given by Ld. Counsel for accused.
8. Accused has admitted Statement u/s 164 Cr.P.C. of victim 'Z' as Ex.PW1/A, Secondary School Certificate of class 10th of victim 'Z' as Ex.P1 and copy of FIR No.608/2006 PS New Friends Colony as Ex.P2, u/s. 294 Cr.P.C.
9. As complainant and all the public witnesses were examined and they did not support the case of prosecution and remaining witnesses were all formal witnesses and no purpose will be served by examining them, therefore, prosecution evidence was closed.
10. As no incriminating evidence came against the accused, therefore, statement of accused was dispensed with.
11. I have heard the arguments advanced by the Ld. Addl. PP for the State and Ld. Counsel for the accused and have perused the record.
FIR No.608/2006 State Vs Amzad page 5 of 11
12. In order to prove the offecne u/s 366 IPC against accused, the prosecution was required to prove beyond reasonable doubt that accused kidnapped Zainab from the possession of lawful guardian / complainant Salim with intention that she may be compelled knowingly it to be likely that she will be compelled to marry with accused or she may be seduced to illicit intercourse with accused and also that despite issuance of process u/s. 82 Cr.PC against accused dated 02.08.2008 accused failed to appear before the court within 30 days. Henceforth, court shall now proceed further to evaluate the evidence available on record to find out if the prosecution has succeeded in its task or not.
13. Now let us examine the prosecution evidence brought on record against the accused.
14. Before proceeding further let us go through the relevant provisions of law.
"Section 366 IPC says - 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 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."
FIR No.608/2006 State Vs Amzad page 6 of 11
15. For an offence under section 366 IPC, it is necessary to prove that :-
(1) The woman in question has been kidnapped or abducted. (2) The woman in question is compelled to marry any person against her will or (3) The woman in question is forced or seduced to illicit intercourse.
(4) Accused has the intention or knowledge that woman will be compelled or forced as such.
16. As per the prosecution Zainab was below 18 years of age when accused Amzad took her away from the lawful guardianship of her father i.e. PW-2 / complainant but as per Zainab she was 22 years old when she went with the accused Amzad and also PW-2 / complainant admitted in the court that he do not know the exact date of birth of his daughter Zainab and she was about 19 to 20 years old on the day of incident. So, there is a dispute regarding the age of the prosecutrix on the day of incident i.e. whether she was below 18 years of age or above. If female is below 18 years of age then kidnapping is committed and in case female is above 18 years of age then abduction is committed. Court will consider both the scenarios i.e. Zainab was below 18 years of age on the day of incident and above 18 years of age on the day of incident.
17. So for the culpability for the offence u/s 366 IPC, it is necessary for the prosecution to prove that Zainab was either kidnapped or abducted by accused Amzad. As per the prosecution case victim Zainab was below FIR No.608/2006 State Vs Amzad page 7 of 11 18 years of age when she was taken away from her lawful guardian by accused Amzad. Offence of kidnapping from lawful guardianship has been defined in sec 361 IPC.
Sec. 361 IPC says:- Kidnapping from lawful guardianship- whoever takes or entices any minor under 16 years of age if a male, or under 18 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.
18. So for the offence of kidnapping from the lawful guardianship it was necessary for prosecution to prove that Zainab was either taken or enticed away from the keeping of her lawful guardian i.e. her parents. The term "taken or enticed away" has been discussed by Hon'ble Supreme Court in the judgment titled as "Varadarajan vs State of Madras" 1965 AIR 942, 1965 SCR(1) 243, wherein, Hon,ble Supreme Court has held that:-
"......... where a minor girl, alleged to be taken away by the accused person, had left her father's protection knowing and having capacity to know the full import of what she was doing and voluntarily joined the accused, it could not be said that the accused had taken her away from the keeping, of her lawful guardian within the meaning of Sec.361 of the Indian Penal Code (Act XLV of 1860). Something more had to be done in case of that kind, such as an inducement held out by the accused person or an active participation by him in the formation of the intention, either immediately prior to the minor leaving her father's protection or at some earlier stage. If the evidence failed to establish one of these merely because after she had actually left her guardian's house or a house where her guardian had kept her she joined the accused, and the accused helper her in her design not to return to her guardian's house by taking her alongwith him from place to place...."
19. Adverting to the facts of the present case and what has come in the deposition of victim Zainab as PW-1 was that she was in love with Amzad and wants to marry him but her parents wants to solemnize her marriage with some other person, so she went to different placed with FIR No.608/2006 State Vs Amzad page 8 of 11 Amzad and got married to him in his native village. The law did not cast upon Amzad the duty of taking her back to her father's house or even of telling her not to accompany him. Both of them were of similar age i.e. Zainab was 17 to 18 years old as per prosecution and Amzad was 22 years old and both were not of tender age, who cannot think for themselves but were capable of knowing what was good or what was bad for themselves. In the present case there was no evidence of any solicitation or inducement by the Amzad at any time. Further, there was no suggestion that the Zainab was incapable of thinking for herself and making up her own mind. In the considering opinion of the court, Zainab went out of the protection of her parents of her own accord and thereafter went with Amzad. Zainab was into friendly relationship with Amzad and her father i.e. PW2/Complainant Salim was not approving of this relation and wants to get her married with someone else.
20. PW-1 / Zainab specifically deposed that she went with Amzad out of her own violation and free will and without any force or coercion. Therefore, Court is satisfied, upon the material on record, that no offence under section u/s 361 of kidnapping from lawful guardian has been established by the prosecution.
21. Second scenario is that on the day of incident Zainab was above 18 years of age. Offence of abduction has been defined in sec 362 IPC.
"Sec 362 IPC: Abduction - Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person."
FIR No.608/2006 State Vs Amzad page 9 of 11
22. For the offence of abduction, it is necessary that either force was used or victim was induced by deceitful means to go from home any place. In the present case, PW-1 / Zainab have specifically deposed that no force or coercion was subjected upon her and she went out of her own violation and free will with the accused Amzad. She went away with Amzad and got married to him and now is having 4 children out of wedlock, which proves that PW-1 / Zainab went with the accused Amzad out of her love and without being deceived by accused Amzad. So, no abduction is done in the present case.
23. As discussed above one of the essential ingredients of the Sec 366 IPC is that the person in question should have been kidnapped or abducted but in the present case prosecution failed to prove that Zainab has been either kidnapped or abducted by Amzad. Therefore, accused cannot be convicted u/s 366 IPC.
24. In the light of the above said discussion and appreciation of evidence court is of the opinion that the prosecution has not been able to prove it's case against the accused person beyond reasonable doubts, hence, the accused is acquitted from the charge u/s.366 IPC framed against him.
25. During the trial, accused Amzad pleaded guilty for the offence u/s. 174A IPC and therefore, he is convicted for the same.
26. Documents, if any, be returned to the rightful owner after due FIR No.608/2006 State Vs Amzad page 10 of 11 acknowledgement and endorsement, if any, made on it be canceled accordingly.
27. File be consigned to Record Room after completing necessary formalities.
VIPIN Digitally signed
by VIPIN KHARB
KHARB Date: 2024.04.26
16:59:38 +0530
Announced in open Court today (Vipin Kharb)
on 26.04.2024 Additional Sessions Judge-07
South-East, Saket Courts,
New Delhi
FIR No.608/2006 State Vs Amzad page 11 of 11