Delhi District Court
State vs (1) Hanish Kumar @ Hunny S/O Satish Kumar on 20 February, 2009
1
IN THE COURT OF SHRI DILBAG SINGH PUNIA: ADDL. SESSIONS
JUDGE01(E): KARKARDOOMA COURTS: DELHI.
SC No.40/08
Date of Institution: 26.5.2008
Date on which reserved for order:11.2.2009
Date of delivery of judgment: 20.2.2009
State v/s (1) Hanish Kumar @ Hunny s/o Satish Kumar
R/o X/1678/13, Gali No.13, Rajgarh Colony,
Near Gandhi Nagar, Delhi.
(2)Saurabh Malhotra s/o Sh. Som Nath Malhotra,
R/o DShop Plot no.18, Pandav Nagar, Delhi.
FIR NO.375/07
PS Pandav Nagar
U/s 363/366/342/34 IPC
JUDGMENT:
1. Case of the prosecution as disclosed from the report u/s 173 Cr.P.C. in brief is as follows: On 8.7.2007, Shri Sidharth Behal lodged a missing report vide DD No.4A concerning his daughter Shruti Behal aged 16 years. He stated that his daughter had left the house without disclosing to anybody. That he enquired from his relatives about his daughter, but in vain. That he placed suspicion upon Sunny s/o Som Nath and Harish Kumar @ Hunny s/o Shri Satish Kumar, as he saw both of them wandering in the gali in front of his house. That he knew both of them for the last 1 ½ year.
2. On the statement of Shri Sidharth Behal (Ex.PW1/A), ASI Dharambir Singh got registered a case under Section 363/34 IPC. He inspected 2 the site, prepared the site plan and recorded the statements of witnesses. Efforts for tracing of prosecutrix were made by the IO and he got recovered the prosecutrix. Medical examination of prosecutrix was got conducted. IO arrested both the accused persons namely Harish Kumar @ Hunny and Saurabh Malhotra and produced them before the court. He produced the prosecutrix before Ld. M.M. and got recorded her statement under Section 164 Cr.P.C. After completion of necessary investigation, challan was got filed through SHO.
3. Ld.M.M. after compliance of the requirements of Section 207 Cr.P.C., committed the case to the court of Ld. Sessions Judge who allocated it to my Ld. Predecessor.
4. On 14.7.2008, after finding out a prima facie case, charges agaisnt the accused persons under Section 363/366/342/34 IPC were framed, to which accused persons pleaded not guilty and claimed trial.
5. In support of its case, prosecution has examined PW1 Shri Sidharth Behal, PW2 Ms. Shruti Behal, PW3 Smt. Sonia Behal, PW4 H.C. Raj Kumar and PW5 ASI Dharambir Singh.
6. PW1 Shri Sidharth and PW3 Smt. Sonia Behal are the parents of the prosecutrix. PW3 Ms. Shruti Behal is the prosecutrix.
7. PW4 H.C. Raj Kumar has testified that on 8.7.2007, around 12.30 a.m., Sidharth Behal contacted him and lodged a missing report regarding his daughter namely Shruti Behal, aged about 16 years. 3 Accordingly, he recorded missing report vide DD No.4 A and proved the same as Ex.PW/A.
8. PW5 ASI Dharambir Singh is the IO of the case who has testified about the manner in which the investigation took place. He proved the statement of Shri Sidharth Behal as Ex.PW1/A and ruqqa Ex.PW5/B on the basis of which present case was registered. He further testified that he prepared the site plan Ex.PW5/D at the instance of complainant. He testified that on the identification of Shri Sidharth Behal he got arrested both the accused persons vide arrest memos Ex.PW1/B and Ex.PW1/C and conducted their personal search vide memos Ex.PW5/E and Ex.PW5/F respectively. That he got conducted medical examination of prosecutrix. He further testified that on 10.7.2007, he produced prosecutrix before Ld. Magistrate and got her statement recorded under Section 164 Cr.P.C.
9. Statements of accused persons were recorded u/s 313 Cr.P.C.without oath in order to give an opportunity to explain the circumstances appearing in evidence against them. Accused persons have denied the case of the prosecution in its entirety and have submitted that they have been falsely implicated in this case. Accused Harish Kumar @ Hunny stated that Shruti Behal had compelled him to accompany her as she had a dispute with her family members. That she had threatened that in case, he will not obey her, then she will commit 4 suicide. That under the compulsion, he accompanied her. That Shruti Behal is an educated girl and he accompanied her as he was on friendly terms with her being her neighbour.
10. Arguments were heard at the bar. Ld. Defence Counsel has submitted that prosecution has not been in a position to establish its case. He has further submitted that there was no enticing or taking away in this case.
11. Ld. Public Prosecutor on the other hand has submitted that in view of the fact that prosecutrix is a minor, offence u/s 363 IPC is made out in this case as consent of minor is no consent.
12. I have carefully perused the records of the case and considered the submissions. Before confronting with the facts, let a bird's eye view of relevant legal position be had.
13. Section 361 IPC is being reproduced for the sake of convenience:
"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 consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
Explanation: The words "lawful guardian" is this section include any person lawfully entrusted with the care or custody of such minor or other person."
14. Legal position with respect to taking away or enticement has been explained in celebrated case titled as S.Verdarajan vs State of Madras, 5 reported in AIR 1965 SC 942. In this case it was held that in a case u/s 363, taking or enticing away minor out of keeping of a law ful guardian is an essential ingredient of the offence of kidnapping. It was further observed as under: "But when the girl (who though a minor had attained the age of discretion and is on the verge of attaining majority and is a senior college student) from the house of the relative of the father where she is kept, herself telephones the accused to meet her at a certain place, and goes there to meet him and finding him awaiting with his car gets into that car of her own accord, and the accused takes her to various places and ultimately to the Sub Registrar's Office where they get an agreement to marry registered, and there is no suggestion that this was done by force or blandishment or anything like that on the part of the accused but it is clear from the evidence that the insistence of marriage came from her side, the accused by complying with her wishes can by no stretch of imagination be said to have taken her out of the keeping of her lawful guardianship , that is, the father.
The fact of her accompanying the accused all along is quite consistent with her own desire to be the wife of the accused by which the desire of accompanying him wherever he went is of course implicit. Under these circumstances, no inference can be drawn that accused is guilty of taking away the girl out of the keeping of her father. She has willingly accompanied him and the law does not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him."
15. Hon'ble Supreme Court in AIR 2004 SC 227 titled as Parkash Vs State of Haryana has again explained in detail about the ingredients of kidnapping. It has been held, that the use of the word "keeping" in the context connotes the 6 idea of charge, protection, maintenance and control ; further the guardian's charge 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 the Section, the consent of the minor who is taken or enticed is wholly immaterial; it is the 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. Persuasion 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.
In State of Haryana v/s Rajaram (1973)(1 SCC 544) English decisions were noted by Hon'ble Supreme Court 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/s Job Timmins (169 English Reports 1260); Reg vs Handley and Another, (175 English Reports 890) and Reg v/s 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 16 out of the possession of her father and against his will. It was observed by Erley , CJ that the statute was passed for the protection of the parents and preventing unmarried girls 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 7 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 the 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.
16. Hon'ble Supreme Court in Thakorlal D. Vadgama Vs. The State of Gujarat (AIR 1973 SC 2313) 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 8 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."
17. Ultimately it can be concluded from the decisions of the Hon'ble Supreme Court that if the minor leaves her parental home, completely uninfluenced by any promise, offer or inducement emanating from the guilty party, than the latter cannot be considered to have committed the offence as defined in Section 361 IPC.
18. Thus, the question which is to be seen while deciding a case u/s 363 IPC is that as to whether the minor has left parental home completely uninfluenced by any promise, offer or inducement emanating from the guilty party or not.
19. Let the facts of the case be confronted with. It has emerged over the record from the testimony of PW1, the father of the prosecutrix, that prosecutrix was a minor when she went missing. PW1 has given her date of birth as 10.12.1991, meaning thereby on 7.7.2007, PW2 was aged about 16 years. There is no hitch in concluding that she was at the threshold of majority. Once it is concluded so, then the deciding factor has to be the testimony of the prosecutrix. I deem it expedient to quote verbatim the relevant para from her testimony, which is reproduced as under: "On 7.7.2007, around 6 p.m., I was present at my home. A quarrel took place between me and my brother Vikas on 9 domestic matters. I became angry and left my home. Hunny is my friend. I gave a telephone call to him and requested him to meet me urgently. At first instance, he declined to meet me, but subsequently he agreed to meet with me. He met me at Ganesh Nagar. He had come there in a TSR. I told him as to where we had to go. He told me that we will go to the house of his sister at Rithala. Accordingly, we went to Rithala by the TSR. We reached at the house of sister of Hunny. Brotherinlaw of Hunny met us there. We requested brotherinlaw of Hunny to arrange a room for us. We were searching a room in the area. We got a room. Me and Hunny remained there during night hours. Brotherin law of Hunny left us. Around 5 a.m., we proceeded for Patparganj and straight way reached at PS Pandav Nagar. My parents met me in the PS."
20. Prosecutrix was declared hostile and in the cross examination by Ld. Public Prosecutor, she has totally denied the case of the prosecution. In the cross examination by Ld. Defence Counsel, she has testified that she had requested accused Hunny to take her away as she was angry with her brother. She further testified that she of her own sweet will and wish accompanied accused Hunny. She further testified that accused persons had no part in elopement. With respect to statement u/s 164 Cr.P.C., she has stated that she had given a tutored version at the instance of the police. To the particular confrontments pf Ld. Public Prosecutor concerning the statement u/s 164 Cr.P.C. she denied the incriminating aspect.
21. Tested on the touchstone of legal overview, the above para of testimony is capable of one and the only one conclusion and that is that there was no taking away or enticing. Prosecutrix is an educated girl and was mature enough to decide. Therefore, her version concerning leaving 10 of sweet will has to be believed. From the testimony of the prosecutrix, it is revealed that she of her own sweet will had left her parental home and being pressurized by her, accused Hunny accompanied her. She has not named accused Sunny in the commission of offence. Therefore, I have no hesitation to observe that there was no blandishment, offer, promise, inducement or anything of the like on the part of the accused persons and accused persons had no role in eloping of the prosecutrix. The mandate of S. Verdarajan's case and English case quoted with approval by the Hon'ble Supreme Court in State vs Raja Ram becomes applicable and leads to the inference that there was no taking away/enticement/kidnapping as defined in Section 361 I.P.C. Once this conclusion is arrived at, necessary corollary is that offence u/s 363 IPC cannot be said to have been committed. Shorn of unnecessary prolonging, I deem it expedient to acquit the accused of the offence charged with.
22. In view of the above going discussion the accused persons are awarded benefit of doubt and is acquitted of the offences under section 363/366/342/34 IPC. Bail bond of the accused persons are cancelled. Sureties are discharged. File be consigned to record room.
Announced in open court (DILBAG SINGH PUNIA) Dated : 20.2.2009. ADDITIONAL SESSIONS JUDGE:
KARKARDOOMA COURTS: DELHI.
11 FIR NO.375/07 PS Pandav Nagar State vs/ Hanish Kumar etc. 20.2.2009 Pr: Shri R.K.Pandey, Ld. PP for the state
Both the accused persons are present on bail being represented by their Counsel Shri Mukesh Kumar, Adv.
Vide my separate detailed judgment, both the accused persons are acquitted of the charges. Their bail bonds are cancelled. Their sureties are discharged. File be consigned to record room.
ASJ)1(E) /KKD/20.2.2009