Delhi District Court
State vs Nihal on 11 January, 2024
IN THE COURT OF SH. AKSHAY SHARMA, METROPOLITAN
MAGISTRATE-02, SOUTH EAST, SAKET COURTS, DELHI.
FIR No.353/22
PS. OIA
U/s. 363 IPC
STATE VS NIHAL
JUDGMENT
A. SL. NO. OF THE CASE : 464/22 B. DATE OF INSTITUTION : 08.08.2022 C. NAME OF THE : Ms. Kismati Devi COMPLAINANT W/o Sh. Sanjay Kumar D. NAME OF THE : Nihal ACCUSED S/o Sh. Jagdish E. OFFENCE COMPLAINED OF : U/s 363 IPC F. PLEA OF ACCUSED : Pleaded not guilty.
G. FINAL ORDER : Acquittal H. DATE OF COMMISSION OF OFFENCE : 02.04.2022 I. DATE OF FINAL ARGUMENTS : 11.01.2024 J. DATE OF SUCH ORDER : 11.01.2024.
BRIEF REASONS FOR THE DECISION OF THE INSTANT CASE 1 Brief facts of the instant case as per the charge-sheet are that on 05.04.2022, the complainant Kismati Devi came to the police station along with her daughter Preeti (aged about 17 years and 05 months), and the alleged Nihal, she stated that Nihal is the same boy who took her daughter.
She further got her statement recorded, in which she stated that on 02.04.2022 she went to work after leaving both her daughters at :2: home, at around 04:00PM the younger Jyoti called her and informed that the victim Preeti has left the home without any information. During the search of her daughter Preeti, complainant was informed that her daughter has went along with the alleged Nihal who resides at Sanjay Colony. Thereafter, her daughter Preeti along with Nihal returned back to the house and was consequently brought to the police station by her. She prayed for legal action against accused Nihal. FIR u/s 363 IPC was registered. Statement of the victim was recorded u/s 161 CrPC and she was sent for medical examination. Thereafter, the statement u/s 164 CrPC of the victim was recorded. Accused was bound down by notice u/s 41A CrPC. Thereafter, the remaining aspects of investigation were completed and charge-sheet for judicial verdict was filed.
2. Cognizance was taken on the instant case on 08.08.2022 after Prima-facie satisfaction regarding commission of offences. After hearing arguments on charge, charge was separately framed against accused Nihal u/s 363 IPC, to which the accused pleaded not guilty and claimed a trial. There after the case was put for prosecution evidence.
3. Prosecution in support of its case examined the following witnesses:
3.1. PW1 Ms. Kismati Devi was examined and she in her examination deposed that she does not remember the exact date, however, she gave the present complaint which is Ex.PW1/A bearing her signatures at point A, when her daughter went missing. However, later on her daughter was found and handed over to them. Thereafter, she went with her daughter ' :3: to her village, after about 03-04 months they received a documents asking them to appear before the child welfare committee. They were informed there that the case has finished. Initially she filed the complaint against accused Nihal (present in the court and correctly identified) stating that neither her daughter nor the accused is being found and they be searched.
PW further stated that she does not want any action to be taken against the accused. The accused and her daughter have got married.
At that stage, Ld. APP for the state sought permission to cross- examine the witness as she was not supporting the case of the prosecution. Which was heard and allowed.
In the cross-examination by the Ld. APP, PW stated that It is wrong to suggest that she was not disclosing the true version because of the fact that the accused and my daughter have got married.
3.2. PW2 Ms. Preeti was examined and she in her examination deposed that on 02.04.2022 she went to Aligarh along with accused Nihal, she went willingly on her own with the accused and accused had not taken her or enticed her to along with him in any manner what so ever. She had married accused Nihal thereafter with the consent of her parents and had no grievance against the accused.
At that stage, Ld. APP for the state had sought permission to cross-examine the witness as she was not supporting the case of the prosecution which was heard and allowed.
In the cross-examination by the Ld. APP, PW stated that it is wrong to suggest that she is not disclosing the true version because of the :4: fact that the accused and her have got married.
4. Since the complainant and the victim, who were the most essential witnesses of the prosecution, failed to support the prosecution. The prosecution evidence was closed as the remaining witnesses were police officials whose testimonies could not prove the essential ingredients of the offences with which the accused was charged. It is noted that trial is not to continue as mere formality and where the chances of conviction are bleak, the criminal proceedings are not to become a tool of harassment.
5. After the closure of prosecution evidence, statement of the accused u/s 313 CrPC r/w Section 281 CrPC was recorded, the complaint and the admitted documents were put to the accused. The accused stated that she did not kidnap Preeti and he simply went outside with Preeti as she called him for going outside. Accused Preferred not to lead any defence evidence.
6. I have heard the Ld. APP for the State and the Ld. LAC for the accused.
DISCUSSION OF LAW, EVIDENCE AND DECISION THERE ON.
7. It is the settled principle of criminal law that the burden of proof in a criminal trial is on the prosecution to prove its case beyond reasonable doubt by leading cogent evidence. The prosecution cannot take the benefit of the weakness of the defence and has to stand on its own legs.
:5:8. Accused in the instant case is charged for offence punishable u/s 363 IPC. Section 363 provides for punishment for kidnapping. Kidnapping is of 02 types, one is kidnapping from India which is defined u/s 360 IPC, the other one is kidnapping from lawful guardianships which is defined u/s 361 IPC. Section 361 IPC is relevant in the instant case. Section 361 IPC defines Kidnapping from lawful guardianship.
"361 Kidnapping from lawful guardianship.--Whoever takes or entices any minor under 1[sixteen] years of age if a male, or under 2[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. Explanation.--The words "lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other person"
9. Section 361 IPC provides for either of the 02 actions on the part of the accused for making him liable to be punished u/s 363 IPC. One is the enticing of the minor and the other is the taking away of the minor from the lawful guardianship without the consent of the lawful guardian. In the opinion of this court, no act of enticing is complained off :6: in the instant case and neither the facts indicate towards any act of enticing. Therefore, the aspect for consideration before this court is that of "taking" and the necessary question to be answered is that whether the accused by his actions can be construed to have taken away the minor girl Preeti out of the lawful guardianship of her mother/ complainant.
10. It is observed that both the complainant and the victim hadnot supported the allegations of the prosecution during their examination in chief before this court. Nothing incriminatory could be ascertained even upon the cross-examination by the Ld. APP. On the other hand, in the cross-examination by the Ld. LAC, both the complainant and the victim admitted that the victim was not kidnapped by the accused and went on her own with the accused. The victim has also categorically stated the same in her examination in chief as well. From the perusal of the testimony of the complainant and the victim, it is amply clear that the offence u/s 363 IPC, as alleged has not been committed.
11. In S.Varadrajan Vs. State of Madras AIR 1965 SC942, the Hon'ble Apex Court has explained the scheme of Section 361 IPC as under.
"...We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping :7: of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian. It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. In our, opinion if evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardian's house by taking her along with him from place to place."
12. Further the Hon'ble High Court of Delhi in State (NCT of Delhi) Vs. Vipin Sharma, Criminal Revision Petition no.93/2018, after placing reliance on the judgment of S.Varadrajan Vs. State of Madras AIR 1965 SC942, held..
"It is, therefore , clear that the sine qua non of an act being covered as offence punishable under Section 361/363 IPC is that the minor should have been „enticed‟ or „taken away‟ from the custody of lawful guardian of the minor. In the present case, there is no evidence on record or any sort of allegation :8: from the victim that it was the accused, who had enticed, allured or induced the victim to leave her house or had taken her out of her lawful guardianship. The victim in her statement under Section 161 as well as 164 Cr.P.C. had stated herself that she had, on her own, gone to the accused and she had done so on several other occasions also, and it was not the accused who had either by any of his acts, verbal or otherwise, taken or enticed the victim away out of lawful custody of her guardian."
13. From the above mentioned respected judgments it is amply clear that for a successful prosecution for the offence u/s 363 IPC, there must be an overt act as an active contribution on the part of the accused which shall induce the victim to abandon the guardianship of her legal guardian and accompany the accused. In order for an act to qualify as "taking", there has to be active contribution on the part of the accused, a minor if on her own leaves the guardianship and goes along with the accused, then that particular act cannot be termed as kidnapping within the meaning of Section 361 IPC as the intention of the legislature cannot be to punish a person who merely allows a minor to accompany with himself/herself.
14. Coming to the facts of the instant case, it is observed that there is not even an iota of incriminatory evidence available against the accused. The case of the prosecution cannot be said to be proved beyond reasonable doubt as the material witnesses have not supported the prosecution.
:9:Therefore, the essential ingredients of the offence punishable u/s 363 IPC are not established beyond reasonable doubt in the instant case and accordingly, accused Nihal stands acquitted for offence punishable u/s 363 IPC.
Pronounced in the open court on 11.01.2024.
Judgment contains total 09 pages, each signed by the undersigned.
(AKSHAY SHARMA) MM-02/SE/Saket/ND 11.01.2024