Delhi District Court
State vs Suaib S/O Shahid on 28 May, 2014
IN THE COURT OF MS. SARITA BIRBAL, ADDITIONAL
SESSIONS JUDGE, (SPECIAL FAST TRACK COURT), EAST,
NORTH EAST & SHAHDARA DISTRICTS, KARKARDOOMA
COURTS, DELHI
Unique Case I.D. No.02402R0015122012
SC No. 119/13 Date of institution : 10.02.2012
FIR No. 377/11 Date of argument : 27.05.2014
PS. Nand Nagri Date of judgment : 28.05.2014
U/S. 363/366/376 IPC
State versus Suaib S/o Shahid
R/o Pasonda, PS Sahibabad,
Ghaziabad, UP.
JUDGMENT
1. The case of the prosecution as disclosed in the chargesheet is that on 07.9.2011, the complainant aged about 42 years came to the police station Nand Nagri and lodged her complaint regarding missing of her daughter (prosecutrix). In her complaint, the complainant made following allegations:
On 06.09.2011 at about 8.00 pm, her daughter (prosecutrix) aged about 17 years and 5 months had left her house without informing any person and has not come SC No. 119/13 State v. Suaib Page 1 of 16 back. She was not traceable despite their efforts. The complainant stated that she has suspicion that the accused namely Suaib who was running a TSR with UP number and used to sit near Gagan Cinema had enticed her daughter and kidnapped her. She requested that action be taken against Suaib.
2. On this complaint, case u/s 363 IPC was got registered against the accused. Efforts were made to search the prosecutrix. The age proof certificate of the prosecutrix was collected which showed that the date of birth of prosecutrix is 18.04.1994. Thereafter on 09.11.2011, on identification of complainant, the prosecutrix was got recovered from Garima Garden, Ghaziabad. The prosecutrix was got medically examined and thereafter section 366/376 IPC was added to this case. Statement of the prosecutrix u/s 164 Cr.P.C was got recorded on 11.11.2011 by the learned MM. Accused was arrested and he was got medically examined on 12.11.2011 from GTB Hospital. Exhibits received from the hospital were sent to the FSL, Rohini for examination. After completion of investigation, chargesheet was filed u/s 363/366/376 IPC against the accused.
3. Since the major offences in the present case are SC No. 119/13 State v. Suaib Page 2 of 16 triable by the court of Session, vide order dated 02.02.2012, learned M.M. committed this case to the court of Sessions and on allocation, this case was assigned to this court.
4. Vide order dated 25.03.2013, my learned predecessor framed the charge u/s 363/366/376 IPC against the accused to which he pleaded not guilty and claimed trial.
5. In support of its case, prosecution has examined eleven witnesses i.e. PW1-Prosecutrix, PW2-mother of the prosecutrix, PW3-Sh. Devender Singh Bhandari-Sub Registrar (birth and death), PW4-Ct. Ram Avtar, PW5-SI Mohan Pratap Negi, PW6-Ct. Ravinder, PW7-Ct. Raj Kumar, PW8-ASI Fateh Singh, PW9-Dr. Bharat Sagar, PW10-W/Ct. Veenakshi, PW11-W/SI Usha.
6. After closing of prosecution evidence, statement of accused u/s 313 Cr.P.C. was recorded in which accused stated that he and the prosecutrix got married three years ago and they have one son from this marriage. He further stated that the prosecutrix had joined him as per her own wish without any pressure. Accused stated that he does not want to lead any defence evidence.
SC No. 119/13 State v. Suaib Page 3 of 167. Out of these witnesses, PW1 prosecutrix and PW2 mother of prosecutrix are the material witnesses of this case whose testimonies shall be discussed at a later stage.
8. PW5-SI Mohan Pratap Negi deposed that on 07.09.2011 he was posted at police station Nand Nagri. On that day, the mother of the prosecutrix came to the police station and lodged a report regarding missing of her daughter. He made his endorsement Ex.PW5/A on her statement Ex.PW2/A and produced the rukka before the duty officer for registration of FIR. The case was registered. He alongwith Ct. Ravinder, mother and brother of the prosecutrix tried to search her (prosecutrix) but she could not be traced out. Messages were flashed to trace out the prosecutrix but she was not traced out. On 09.11.2011, mother of the prosecutrix stated that the accused and the prosecutrix were residing in a rented house at Garima Garden. Thereafter in the market, the mother of the prosecutrix identified the prosecutrix. Enquiries were made from the prosecutrix and she stated that the accused has gone to his work place. Prosecutrix was brought to the police station and her statement was got recorded. She was sent to hospital for her medical examination alongwith SC No. 119/13 State v. Suaib Page 4 of 16 lady constable and her medical was got done in the hospital. Documents produced by the prosecutrix were seized by the police. Statement of the prosecutrix u/s 164 Cr.PC was got recorded by learned MM.
9. PW6 Ct. Ravinder deposed that on 07.09.2011 duty officer handed over him a rukka and copy of FIR which he handed over to the IO and joined the IO. During investigation, efforts were made to trace the prosecutrix but she was not traced out.
10. PW3 Sh. Devender Singh Bhandari from the office of Sub Registrar (birth and death), Shahdara brought the original summoned record and deposed that as per original birth register, at registration no. 1453, mother of the prosecutrix gave birth to a female child on 18.4.1994 at their house. He proved the copy of birth register as Ex.PW3/A. He also proved the copy of birth certificate of female child as Ex. PW3/B.
11. PW10 W/Ct.Veenakshi deposed that on 09.11.2011 she took the prosecutrix to GTB Hospital for her medical examination.
12. PW9 Dr. Bharat Sagar deposed that on SC No. 119/13 State v. Suaib Page 5 of 16 09.11.2011, the prosecutrix was brought in the hospital by woman constable Meenakshi for her medical examination. She was initially examined by him and she was referred to SR gynae emergency.
13. PW7-Ct. Raj Kumar deposed that on 11.11.2011, he alongwith IO was present outside the Karkardooma Courts where the complainant and her daughter were present and on the identification of complainant, accused was arrested vide arrest memo Ex.PW7/A and his personal search was conducted vide memo Ex. PW7/B.
14. PW8 ASI Fateh Singh, deposed that on 12.11.2011 he was working as MHC (M) and W/SI Usha deposited three sealed parcels sealed with the seal of GTB Hospital alongwith one sample seal and he made entry in register no.19 at serial no. 4704 vide Ex. PW8/A.
15. PW4 Ct. Ram Avtar deposed on 12.11.2011, he took the accused to GTB Hospital for his medical examination and after his medical examination, the sealed parcels alongwith sample seals received from the hospital were seized by the IO vide seizure memo Ex. PW4/A.
16. PW11 W/SI Usha deposed that on 11.11.2011, SC No. 119/13 State v. Suaib Page 6 of 16 she was posted at PS Nand Nagri as SI. Investigation of the case case was handed over to her. She arrested the accused and thereafter he was got medically examined. Exhibits received from the hospital were deposited in the malkhana. Prosecutrix was handed over to her mother. During investigation, she recorded the statements of the witnesses u/s 161 Cr.P.C. and thereafter she filed the challan.
17. I have heard arguments addressed by learned Addl. PP for the State and Sh. Anju Tyagi, Advocate for accused and perused the record.
18. Prosecutrix (PW1) has not supported the case of prosecution. She deposed that she has studied upto 9th class. She also deposed that she did not remember her date of birth but her date of birth as given in the school is not correct. She deposed that she knew the accused who was driving TSR. About 1 ½ years back (statement of this witness was recorded on 31.07.2013), she went to Badaun with the accused where friends of the accused were residing. She got married with the accused at Badaun and lived there as husband and wife. She deposed that she remained with the accused for one and half months as his wife and the accused maintained physical relations with SC No. 119/13 State v. Suaib Page 7 of 16 her. Thereafter they came back to Pasonda, Ghaziabad, UP where she alongwith the accused resided at a tenanted house and till date she is residing at the above said address. She deposed that she is living happily with the accused and does not want to pursue the present case. She further deposed that at the relevant time she was major. Her statement was recorded by the learned MM. She deposed that she was taken to the hospital by the police but she refused her medical examination as she did not want to get any case registered against the accused.
19. As this witness did not support the case of prosecution, she was declared hostile and was cross examined by learned Addl. PP for the State. During cross examination, she deposed that she did not state to the police that at the time of incident she was about 17 years and 5 months. She also denied that her date of birth is 18.04.1994 but stated that her date of birth is 18.04.1993. She also denied that she was forced by the accused by giving threats of suicide if she will not accompany him.
20. This witness was cross examined on behalf of the accused wherein she stated that she was above 18 years of age at the time of alleged incident. She further deposed that she went with the accused with her own free SC No. 119/13 State v. Suaib Page 8 of 16 will as she loved him. She solemnized her marriage with the accused with her free will.
21. PW2 mother of prosecutrix and the complainant also did not support the case of prosecution. She deposed that the prosecutrix was born on 18.04.1993 at hospital. However, her husband gave the date of birth of the prosecutrix as 1994 at the time of registration in Corporation as he was under influence of liquor. She further deposed that on 06.09.2011, she sent the prosecutrix to buy some vegetable but she did not return. Thereafter she lodged report Ex.PW2/A. She deposed that she came to know that the prosecutrix accompanied the accused but now she is living happily with the accused. She further deposed that after one week of missing of her daughter, she had gone for purchasing vegetables where she saw her daughter. This witness informed the police regarding her daughter She went to police station to withdraw her case but she was informed that her case has been sent to the court.
22. PW2 did not support the case of prosecution and was declared hostile by the learned Addl. PP for the State and was cross examined by learned Addl. PP with the permission of the court. During her cross examination on SC No. 119/13 State v. Suaib Page 9 of 16 behalf of State, she deposed that she cannot say if she stated in her complaint that the accused had kidnapped her daughter by enticing her. She denied that she had named the accused in her complaint as he had kidnapped her daughter by enticing her. She denied that she mentioned the age of her daughter as 17 years and 5 months.
23. During her cross examination on behalf of the accused, PW2 deposed that her daughter disclosed that she was living with the accused as his wife happily and her daughter refused to join her parents.
24. The accused is facing trial for the commission of offences u/s 363/366/376 IPC. The prosecutrix in her statement deposed that she had gone with the accused to Badaun and she got married with him and they lived there as husband and wife. Prosecutrix further deposed that they maintained physical relations as husband and wife and thereafter she alongwith accused came back to Pasonda, District Ghaziabad, UP where she lived with the accused in a rented house and till date (the date of recording her statement on 31.07.2013) she is residing at that address.
25. Section 363 IPC provides punishment for SC No. 119/13 State v. Suaib Page 10 of 16 kidnapping of minor as defined under section 361 IPC.
26. Section 361 IPC defines the offence of kidnapping as 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 the such guardian, is said to kidnap such minor or person from lawful guardianship.
27. In the judgment Lawrence Kannandas V. The State of Maharashtra [ 983 Crl. L. J. 1819], Hon'ble Bombay High Court after referring the judgment of Hon'ble Supreme Court in the case of S. Varadarajan V. State of Madras ( AIR 1965 SC 942) in the context of Sec.361 IPC held as follows:
''In order to come within the mis-chief of that section the accused must have either taken away the minor girl or must have enticed the minor girl out of the keeping of her lawful guardian without the consent of such guardian. The two expressions ''taking'' and ''enticing'' evidently have two different connotations. But both the expressions call for some positive step having taken by the accused to remove the girl from the lawful guardians. Neither of the sections would have any application if the girl has, of her own accord, come out of the custody or come out of the keeping of her lawful guardians and if it is thereafter that the accused had gone with her to some place.'' SC No. 119/13 State v. Suaib Page 11 of 16
28. Similarly, in Madan Lal v. Dr. Jaswant Batra [1994 Crl. L.J 1767], the Hon'ble Delhi High Court in the context of same provision observed as follows:
''The most important ingredient of this section is taking or enticing away a minor or a person of unsound mind from keeping of the lawful guardian. Before a person is said to he kidnapped a minor, there must be some proof of his having done something which led to removal of the minor from the keeping of his/ her guardian.''
29. PW3 Sh. Devender Singh Bhandari official from the office of Sub Registrar (birth and death), Shahdara, North Zone, deposed that as per the birth register record, date of birth of the prosecutrix is 18.04.1994. However, the prosecutrix during her statement deposed that her correct date of birth is 18.04.1993 and not 18.04.1994. The mother of the prosecutrix (PW2) also deposed that her daughter (prosecutrix) was born on 18.04.1993 in the hospital. She deposed that her husband gave the year of birth of his daughter (prosecutrix) as 1994 in the MCD office as he was under influence of liquor at that time.
30. Even if the case of the prosecution is taken to be correct that at the relevant time the prosecutrix was about 17 years and 5 months of age, I am of the opinion that the prosecution has not been able to establish that the accused had kidnapped the prosecutrix. In order to SC No. 119/13 State v. Suaib Page 12 of 16 succeed its case, the prosecution was required to establish that the accused took or enticed the prosecutrix out of keeping of the lawful guardianship without the consent of such guardian.
31. In the instant case, the prosecutrix in her evidence has deposed that she had gone with the accused and got married with him at Badaun. There is nothing in her evidence to indicate that the accused had done any act which can be considered as enticement on his part. During cross examination, she also stated that she went with the accused of her free will as she loved him. The other relevant witness i.e. mother of the prosecutrix has not stated anything which would show that the accused enticed the prosecutrix which caused her leaving of her home. In these circumstances, it must be held that the prosecution has failed to establish that the accused enticed the prosecutrix in any manner which led to the prosecutrix leaving her home from the lawful guardianship of her parents/father. The present case is that of prosecutrix leaving her home of her own to join the company of accused to whom she got married. Even as per the case of the prosecution, the age of prosecutrix was 17 years and 5 months at the time of incident and she was about to attain the age of majority.
SC No. 119/13 State v. Suaib Page 13 of 1632. The evidence that has come on record is only to the effect that the prosecutrix left the lawful guardianship of her parents of her own. No evidence has come on record to show taking, enticing or allurment on the part of accused. Since there is no evidence on record to show that accused had enticed or took away the prosecutrix from the lawful guardianship, the mandatory requirements of section 361 IPC are not fulfilled. Thus, the accused is liable to be acquitted of the offence u/s 363 IPC.
33. Offence u/s 366 IPC provides that 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. Section 366 embodies an aggravated form of offence of kidnapping as defined under section 361 IPC and abduction as defined u/s 362 IPC. Since the prosecution has not been able to establish that the accused kidnapped the prosecutrix and there is no evidence to show use of force or coercion by the accused, there can SC No. 119/13 State v. Suaib Page 14 of 16 be no kidnapping or abduction for the offence punishable u/s 366 IPC. Thus accused is liable to be acquitted for the offence punishable u/s 366 IPC.
34. As far as offence u/s 376 IPC is concerned, the prosecutrix and the accused got married at Badaun where they lived as husband and wife. Prosecutrix deposed that the accused maintained physical relations with her in the capacity of husband and wife. There is no evidence on record to show that the the accused made physical relations even prior to their marriage. Even if for the sake of argument, it is presumed that the accused and the prosecutrix had physical relations prior to date of their marriage then at the relevant time, the prosecutrix was more than 17 years of age. She was capable to give her consent for such relations. The incident would have occurred on or about 07.09.2011 i.e. prior to the Criminal Law (Amendment) Act, 2013 came into force on 03.02.2013. Thus, the present case would be governed as per the law prevailing at that time. There is no incriminating evidence against the accused for the offence punishable u/s 376 IPC and thus the charge u/s 376 IPC against accused must also fail.
35. In view of above discussion, it is held that the prosecution has not been able to prove its case. Thus, the SC No. 119/13 State v. Suaib Page 15 of 16 accused is acquitted for the offences punishable u/s 363/366/376 IPC.
36. Files be consigned to record room after necessary compliance.
Announced in the open court on 28.05.2014 (Sarita Birbal) Additional Sessions Judge, (SFTC), Karkardooma Courts, Delhi SC No. 119/13 State v. Suaib Page 16 of 16