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Showing contexts for: s.366 ipc in State vs Sovinda @ Sovinder/ Fir No.146/11/Ps ... on 9 December, 2013Matching Fragments
3. Vide order dated 09.04.2013, the Charge under section 363/366 IPC was framed against accused Sovinda @ Sovinder who pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution has examined three witnesses i.e. : STATE VS SOVINDA @ SOVINDER/ FIR NO.146/11/PS BHALASWA DAIRY, U/S. 363/366 IPC page 3 of page 15 PW1 Ms. Kamla Sharma is the school Principal of M.C. Primary School, Bhalaswa Dairy1, Delhi and proved school admission register of the prosecutrix B as Ex.PW1/A and her admission form as Ex.PW1/B. PW2 is the prosecutrix B. PW3 Chaman Lal, complainant/father of the prosecutrix B.
7. Arguments were heard from Sh. A. K. Gupta, Ld. APP for the state and Sh. Gulshan Kumar, ld. Amicus Curiae for the accused.
8. Ld. Addl. PP for the State has argued that, from the STATE VS SOVINDA @ SOVINDER/ FIR NO.146/11/PS BHALASWA DAIRY, U/S. 363/366 IPC page 4 of page 15 testimony of PW2 and PW3, it is proved that accused has enticed the prosecutrix 'B' a minor girl aged less than 16 years and took her away from the custody of her lawful guardianship of her parents and performed marriage with her. Ld. Adll. PP for the State further argued that, from the testimony of PW1, it is proved that prosecutrix was less than, 18 years of age on the day of incident. Hence, her consent is immaterial. Therefore, offence u/s. 363/366 IPC is proved against the accused beyond reasonable doubts. Therefore, accused Sovinda @ Sovinder is liable to be convicted.
19. The second ingredient of Section 361 IPC is whether accused has taken out the prosecutrix B from the custody or her lawful guardian. There is a difference between taking and allowing a minor to accompanied with him. In case S. Vardarajan vs State of Madras 1965 AIR 942, 1965 SCR (1) 243, Hon'ble Supreme Court while dealing with almost similar kind of situation has held that:
"In such a case we do not think that the accused can be said to have taken her away from the keeping 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 STATE VS SOVINDA @ SOVINDER/ FIR NO.146/11/PS BHALASWA DAIRY, U/S. 363/366 IPC page 12 of page 15 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 is to establish one of those thing 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 alongwith him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfillment of the intention of the girl. That part, in our opinion, falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to "taking".
23. Hence, in these circumstances, from the testimony of PW2 and PW3, prosecution have failed to prove any positive act of STATE VS SOVINDA @ SOVINDER/ FIR NO.146/11/PS BHALASWA DAIRY, U/S. 363/366 IPC page 14 of page 15 the accused that he took or entice the prosecutrix B from the custody of the lawful guardianship of her parents. If prosecutrix has herself left her home without any persuasion from the accused and accused just accompanied the prosecutrix, it could not be said that he took away her from the lawful guardianship. Therefore, in these circumstances and in view of the judgment S. Vardarajan vs State of Madras (Supra) I hold that the prosecution has failed to prove that the accused committed kidnapping of 'B' and when kidnapping is not proved the offence of kidnapping of prosecutrix B for the purpose of compelling her for seducing her for illicit intercourse marriage or intercourse punishable u/s 366 IPC also goes. Hence, I acquit him for offence under section 363/366 IPC.