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2003 DIGILAW 1517 (PNJ)

Sandeep Kumar v. State of Punjab

2003-11-05

S.S.SARON

body2003
JUDGMENT S.S. Saron, J. - This appeal has been filed by Sandeep Kumar, appellant against the judgment and order dated 3.4.1991 passed by the learned Additional Sessions Judge, Gurdaspur whereby the appellant has been found guilty for the offences under Sections 363 and 366 of the Indian Penal Code (Indian Penal Code for short) and he has been sentenced to undergo rigorous imprisonment for four months and a fine of Rs. 200/- on each count. In default of payment of fine he is to undergo further rigorous imprisonment for one month. Both the sentences have been ordered to run concurrently. 2. Case FIR No. 132 dated 22.8.1989 was registered at Police Station, City Gurdaspur for the offences punishable under Sections 363 and 366 Indian Penal Code on the statement of Kishan Chand son of Sewa Ram. In his application dated 22.8.1989, it has been stated that he is a poor Harijan residing in small tenement just opposite Central Jail, Gurdaspur and is running a petty tea shop there. On 27.7.1989, his younger daughter (prosecutrix), who had passed Matriculation examination went to Government Girls Senior Secondary School, Gurdaspur to seek admission to 10+1 class but she did not return home. They then went to their relatives and acquaintances to trace her but in vain. She had in fact been abducted by Sandeep Kumar alias Bittu (appellant) on the same day. It was prayed that the daughter of the complainant be traced and returned to him and strict legal action be taken. The Police investigated the case and after investigation the challan in terms of Section 173 of the Code of Criminal Procedure (Criminal Procedure Code for short) was filed in the Court of the learned Additional Chief Judicial Magistrate, Gurdaspur on 26.3.1990, who in terms of his order dated 23.4.1990 committed the case to the Court of Session as the offences under Sections 363 and 366 Indian Penal Code attributed to the appellant were triable by the said Court. 3. The prosecution, to prove its case, had examined Kishan Chand, complainant (PW-1), Vinod Sarup, M.H.C. (PW-2), Prosecutrix (PW-3) and the Investigating Officer Ved Parkash (PW-4) and closed its evidence. The statement of the appellant in terms of Section 313 Criminal Procedure Code was recorded in which he stated that he was innocent and that he had married the prosecutrix on 16.8.1989 in the Mandir of his Village Gandhian. The statement of the appellant in terms of Section 313 Criminal Procedure Code was recorded in which he stated that he was innocent and that he had married the prosecutrix on 16.8.1989 in the Mandir of his Village Gandhian. She was now living with him as his wife and she came to him of her own will and on that day she was 18 years and 6 days old. It is also stated that the mother of the prosecutrix knew this fact that she was going with him and now a compromise has been arrived at with the parents of the prosecutrix. In his defence, he examined Smt. Jito, mother of the prosecutrix as DW-1. On the basis of the said evidence, as already noticed, the learned Additional Sessions Judge, Gurdaspur convicted and sentenced the appellant which order is assailed in this appeal. 4. Shri S.S. Khaira, Advocate, the learned counsel for the appellant has contended that the accused is absolutely innocent and that he has in fact married the prosecutrix and, therefore, he is not liable for any offence. 5. Mrs. Rupinder Kaur Wasu, learned Additional Advocate General, Punjab, however, contends that the offences against the appellant have been fully established, inasmuch as, the prosecutrix was a minor on the date of the occurrence. Therefore, the offences attributed to the appellant would come within the ambit of Section 361 Indian Penal Code which defines kidnapping from lawful guardianship. As such, it is contended that the appeal merits dismissal. 7. Shri K.S. Ahluwalia, learned counsel appearing for the prosecutrix has stated that the prosecutrix is living with the appellant and both are happily married. 8. The appellant and the prosecutrix are also present in Court and the prosecutrix has stated that she does not want to pursue the case against the appellant. It is, however, appropriate to note that the offence attributed to the appellant, is not compoundable offence. Therefore, it is to be seen as to whether on the basis of material on record a case for conviction of the appellant is made out. The circumstance that has been taken into consideration by the learned Additional Sessions Judge is that the prosecutrix was less than 18 years on 27.7.1989, inasmuch as, she has stated that her date of birth is 11.8.1971. It is, however, not in dispute that the appellant was married to the prosecutrix on 16.8.1989. The circumstance that has been taken into consideration by the learned Additional Sessions Judge is that the prosecutrix was less than 18 years on 27.7.1989, inasmuch as, she has stated that her date of birth is 11.8.1971. It is, however, not in dispute that the appellant was married to the prosecutrix on 16.8.1989. In fact, the mother of the prosecutrix appeared as DW-1 and stated that prosecutrix was her daughter and she was married to the appellant. Besides, she was living with him. It is further stated that she has no objection to her living with the appellant and that she was previously 19 years of age. She had passed her Matriculation examination and whatever she has done, she has done correctly and as per her wishes. In her cross-examination, it is stated that her husband lodged a report with the Police against the appellant when the prosecutrix was kidnapped. She could not tell the date, month or year of birth of the prosecutrix. She stated that it was wrong to say that the prosecutrix was minor on the date of kidnapping. Besides, it was wrong to say that she had compromised with the accused. 9. The offences attributed to the appellant are that of Sections 363 and 366 Indian Penal Code. The same may be noticed, which read as under :- "363. Punishment for kidnapping. - Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. 366. Kidnapping, abducting or inducing woman to compel her marriage, etc. The same may be noticed, which read as under :- "363. Punishment for kidnapping. - Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. 366. Kidnapping, abducting or inducing woman to compel her marriage, etc. - 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 be punishable as aforesaid." 10. Sections 359, 360 and 361 Indian Penal Code define the offences of kidnapping. In terms of Section 359, it is indicated that kidnapping is of two kinds that is kidnapping from India and kidnapping from lawful guardianship. Section 361 Indian Penal Code, which is involved in the present case reads as follows :- "361. Kidnapping from lawful guardianship. - 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 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. Explanation. Explanation. - The words "lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other person. Explanation. - This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to lawful custody of such child, unless such act is committed for an immoral or unlawful purpose." 11. A perusal of the above Section 361 Indian Penal Code shows that whosoever takes or entices any minor under the age of eighteen years in case of a female out of the keeping of the lawful guardian of such minor without the consent of such guardian is said to kidnap such minor or person from lawful guardianship. 12. The only evidence which can be said to be of same relevant (some relevance ?) and which has come on record is the statement of Kishan Chand (PW-1), father of the prosecutrix. A reading of the said statement does not anywhere indicate that the appellant is the person who has kidnapped his daughter (prosecutrix). All that is stated by him is that on 27.7.1989 the prosecutrix had left his house saying that she was to go to Government Girls Higher Secondary School, Gurdaspur for seeking admission in 10+1 class. Thereafter, she did not return and he searched for her with his relatives but she was not found. It is further stated that they came to know that the appellant had kidnapped her. He then made an application Ex. PA addressed to the Senior Superintendent of Police, Gurdaspur which was signed by him at Ex. PA/1. He also produced before the Police attested copy of the Middle standard examination certificate of his daughter, which was marked as Mark-A. It is further stated that the date of birth of the prosecutrix was 20.3.1972 and on the date of her kidnapping, she was 17 years and 4 months old. It is further stated that she has still not been recovered from the custody of the appellant. This statement of the complainant Kishan Chand (PW-1) was recorded on 28.8.1990 and his examination-in-chief was deferred to enable him to produce the Matriculation certificate of the prosecutrix. The said certificate was produced by him in the statement recorded on 3.10.1990 as Ex. PC. 13. This statement of the complainant Kishan Chand (PW-1) was recorded on 28.8.1990 and his examination-in-chief was deferred to enable him to produce the Matriculation certificate of the prosecutrix. The said certificate was produced by him in the statement recorded on 3.10.1990 as Ex. PC. 13. The other evidence is that of the prosecutrix (PW-3), who has stated that on 15.8.1989, her father, mother, brothers and sister gave her beating. It is stated that she was being married to an aged person but she did not agree. It was on this score that she was given beating. She further deposed that she had no illicit relations with the appellant by that time and on 27.7.1989 after passing Matriculation examination, she did not go to take admission in Government Girls Senior Secondary School Gurdaspur in 10+1 class and it was wrong to say that on that day she did not return home. Nowadays she has been living with the appellant. In her cross-examination, it has been deposed that her correct date of birth is 11.8.1971. At the time of deposition before the Court on 11.12.1990, it is stated by the prosecutrix (PW-3) that she was at that time aged 21 years and she had married the appellant and had been living with him. In the further re-examination, it is deposed by the prosecutrix (PW-3) that it was correct that in her certificates Ex. PC and Ex. PD her date of birth was recorded as 20.3.1972. Besides, she did not move for correction of her date of birth and she had got a certificate from the office of Civil Surgeon, Gurdaspur which showed her date of birth as 11.8.1971. It is further stated that it was wrong to say that her correct date of birth was 20.3.1972. Besides, it was also wrong to say that on 27.7.1989 she was a minor. 14. Considering the above evidence and material on record, it would be appropriate to note that the date of birth of the prosecutrix (PW-3) has not been conclusively established. In the Matriculation certificate the date of birth is recorded as 20.3.1972. However, in her deposition in Court, she says that her date of birth is 11.8.1971. It was stated in her cross-examination that she got certificate from the office of Civil Surgeon, Gurdaspur who showed her date of birth as 11.8.1971. In the Matriculation certificate the date of birth is recorded as 20.3.1972. However, in her deposition in Court, she says that her date of birth is 11.8.1971. It was stated in her cross-examination that she got certificate from the office of Civil Surgeon, Gurdaspur who showed her date of birth as 11.8.1971. Not only this, Smt. Jito, mother of the prosecutrix who appeared as DW-1 stated that she was previously 19 years old. Therefore, the evidence on record does not show that the prosecutrix was under the age of 18 years or that she was taken away or enticed by the appellant from her residence. 15. The primary case of the prosecution is that the prosecutrix was kidnapped or enticed from the lawful guardianship which would make out an offence under Section 363 Indian Penal Code. In other words there was no consent of the guardian of the prosecutrix to be with the appellant. As has already been noticed the age of the prosecutrix and whether she was minor on the date of the occurrence, has not been established conclusively. In any case, in terms of the explanation to Section 361 Indian Penal Code, which has been reproduced above, it may be seen that the words "lawful guardian" have been explained to include any person lawfully entrusted with the care of custody of such minor or other person. Smt. Jito (DW-1), the mother of the prosecutrix has appeared and stated that she has no objection of her daughter living with the appellant and that previously she was 19 years of age. Therefore, it can be said that there has been consent at least on the part of the mother of the prosecutrix for the prosecutrix to live with the appellant. The marriage between the prosecutrix and the appellant was solemnised on 16.8.1989 by which time the prosecutrix was admittedly a major even if her date of birth is taken as 20.3.1972 as per the matriculation certificate Ex. PC. In the circumstances, it cannot be said that the prosecutrix was kidnapped from lawful guardianship. Besides, the fact that the prosecutrix has married of her own free will it cannot be said that she was kidnapped or abducted with an intent to compel her to marry against her Will. Rather, the prosecutrix (PW-3) has deposed that she was being compelled to marry another aged person against her wishes. Besides, the fact that the prosecutrix has married of her own free will it cannot be said that she was kidnapped or abducted with an intent to compel her to marry against her Will. Rather, the prosecutrix (PW-3) has deposed that she was being compelled to marry another aged person against her wishes. Even otherwise the circumstances now are that the prosecutrix and the appellant are living as husband and wife. 16. In the facts and circumstances of the case, from the evidence and material on record the present is not a case from which it can be said that the appellant has committed the offence of kidnapping or took the prosecutrix (PW-3) from the lawful guardianship of another person. Neither can it be said that the prosecutrix was kidnapped or abducted with an intent that she would be compelled to marry against her will. Therefore, the prosecution has failed to establish the guilt of the appellant beyond shadow of reasonable doubt. 17. For the foregoing reasons, the appeal is allowed and the order dated 3.4.1991 passed by the learned Additional Sessions Judge, Gurdaspur is set aside and the appellant shall stand acquitted of the offences attributed to him. Appeal allowed.