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2010 DIGILAW 1384 (PNJ)

Vinod v. State Of Haryana

2010-04-06

SHAM SUNDER

body2010
Judgment Sham Sunder, J. 1. This appeal is directed against the judgment of conviction dated 21.7.2003, and the order of sentence dated 23.07.2003, rendered by the Additional Sessions Judge, (Ad hoc), Fast Track Court, Faridabad, vide which he convicted and sentenced the accused, as under :- Name of the accused (now appellant) The offence for which conviction was recorded. Sentence awarded Vinod U/S. 363 IPC Imprisonment for 03 years. Fine of Rs. 500/-In default of payment of fine to undergo imprisonment for three months. U/S 366 IPC Imprisonment for five years. Fine of Rs. 1000/-. In default of payment of fine to undergo imprisonment for six months. The substantive sentences of the accused were ordered to run concurrently. 2 The facts, in brief, are that on 13.09.2002, accused Rajindri (since acquitted) had come to the house of the prosecutrix, to deliver her a letter written by her co-accused, Vinod. In that letter, Vinod, accused had requested the prosecutrix, to meet him at 3.00 PM at Sohna Chowk. After reading that letter, the prosecutrix had torn the same, and had gone to the disclosed place, at the appointed time, on 14.09.2002, where Vinod, accused was already present. He took her in an auto rickshaw to old Faridabad on the pretext, that he would perform marriage with her. When they reached Old Faridabad, one Raju and his girlfriend Poonam also met the prosecutrix and Vinod, accused. There, Vinod, accused and Raju, made her to consume some cold-drink, mixed with some intoxicant. On consuming the same, the prosecutrix became unconscious. Thereafter, Vinod, accused and two others namely Raju and Poonam, took the prosecutrix, in a Maruti van, to Jalandhar where they stayed for 3-4 days. During those days, Vinod, accused had been pressurizing her to perform marriage with him. Thereafter, Vinod, accused, took the prosecutrix, to a temple, where they performed marriage. 3. On 21.09.2002, they left Jalandhar for going to Agra and when at about 3.00 PM, they reached Ballabhgarh Railway Station, and were waiting for a train, for going to Agra, the parents of the prosecutrix, her uncle Mohan Lal and some Policemen, came there. On seeing the Police, Raju, slipped away, from the spot, while the prosecutrix and Vinod were apprehended, by the Police. The statement of the prosecutrix was recorded by the Police, wherein she narrated the occurrence. On seeing the Police, Raju, slipped away, from the spot, while the prosecutrix and Vinod were apprehended, by the Police. The statement of the prosecutrix was recorded by the Police, wherein she narrated the occurrence. She was handed over by the Police, to her father, and uncle Mohan Lal 2-3 days thereafter, the statement of the prosecutrix was recorded under Section 164 Cr.P.C, by a Judicial Magistrate, at Faridabad. 3-A. On the same day i.e. 21.9.2002, Sir Ram, father of the prosecutrix, moved a complaint, Ex.PB, before Mohd. Idris, Assistant Sub Inspector, on the basis whereof, the FIR was registered. The prosecutrix was medicolegally examined by Dr. Madhu Lata Pal, on 26.09.2002. Vinod, accused and Rajindri (since acquitted) were arrested. After the completion of investigation, they were challaned. 4. On their appearance, in the Committing Court, the accused were supplied the copies of all the documents, relied upon by the prosecution. 4-A. After the case was received by commitment, in the Court of Sessions, charge under Sections 363 and 366 read with Section 34 of the Indian Penal Code was framed against the accused, to which they pleaded not guilty, and claimed judicial trial. 5. The prosecution, in support of its case, examined Dr. Madhu Lata Pal, Medical Officer, (PW-1), who medicolegally examined the prosecutrix on 26.09.2002, Sir Ram, complainant, father of the prosecutrix, (PW-2), prosecutrix, (PW-3), Mohd. Idrish, Assistant Sub Inspector, (PW-4), and J.P. Sharma, Principal, (PW-5). Thereafter, the Public Prosecutor for the State, closed the prosecution evidence. 6. The statements of the accused, under Section 313 of the Code of Criminal Procedure were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. 7. In their defence, the accused examined Ghan Sham, DW-1 and Rajinder, DW-2. Thereafter, they closed their defence evidence. 8. After hearing the Public Prosecutor for the State, the Counsel for the accused and on going through the evidence on record the trial Court convicted and sentenced Vinod accused, whereas acquitted Rajindri accused as, stated above. 9. Feeling aggrieved against the judgment of conviction and the order of sentence, rendered by the trial Court the instant appeal has been filed by Vinod, appellant. 10. I have heard the Counsel for the parties and have gone through the evidence and record of the case carefully. 11. 9. Feeling aggrieved against the judgment of conviction and the order of sentence, rendered by the trial Court the instant appeal has been filed by Vinod, appellant. 10. I have heard the Counsel for the parties and have gone through the evidence and record of the case carefully. 11. The Counsel for Vinod/appellant/submitted that the prosecutrix of her own, went to meet Vinod accused. He further submitted that he accompanied him to Jalandhar and as also to other places of her own accord. He further submitted that the accused never kidnapped her from her lawful guardianship. He further submitted that no doubt, as per the school leaving certificate Ex.PH, the date of birth of the prosecutrix, is recorded as 16.09.1986. He further submitted that on the alleged date of occurrence, the age of the prosecutrix was 2 days less than 16 years. He further submitted that the prosecutrix was mature enough to decide between her good and bad. He further submitted that the mere fact that/prosecutrix was minor, did not mean that the accused, in the facts and circumstances of the case referred to above, committed any offence. He further submitted that even in the letters, allegedly written by the accused no inducement was given by him (accused) so as to persuade the prosecutrix to accompany him to some other place. He further submitted that the prosecutrix was having love affairs with the accused, as is evident from Ex.DB and DC letters which were admittedly written by her, to him (accused). He further submitted that, under these circumstances, the offences punishable under Sections 363 and 366 IPC were not committed by the accused, but he was wrongly convicted by the trial Court. 12. On the other hand the Counsel for the respondent-State, submitted that since age of the prosecutrix was two days less than 16 years, at the time of occurrence and as such she was minor. He further submitted that whether the prosecutrix accompanied the accused of her own or was taken away by her after offering some inducement hardly mattered. He further submitted that the consent of the minor was of no consequence in the eyes of law. He further submitted that the accused committed offences, punishable under Sections 363 and 366 IPC. 13. He further submitted that whether the prosecutrix accompanied the accused of her own or was taken away by her after offering some inducement hardly mattered. He further submitted that the consent of the minor was of no consequence in the eyes of law. He further submitted that the accused committed offences, punishable under Sections 363 and 366 IPC. 13. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the appeal deserves to be accepted for the reasons to be recorded hereinafter. The first question, that falls for determination is what was the age of the prosecutrix, at the time of the alleged occurrence. Ex. PH is the school leaving certificate of the prosecutrix, according to which, her date of birth is recorded as 16.09. 1986. If this document is assumed to be correct, and there is no reason to do otherwise, she was two days less than 16 years on the date of the alleged occurrence. When the prosecutrix was examined as PW-3, she stated that she received a letter from the accused through Rajindri (since acquitted) wherein he (accused) had asked her to meet at a particular place. She also stated that after reading the letter she tore it. There was sufficient time in between, to think over. The prosecutrix could avoid to meet the accused but she did not do so. Since she was having love affairs, with the accused, as is evident from the love letters Ex.DB and DC, which were written by her, as per her own admission, she went to meet him of her own accord, without any pressure, allurement, or inducement. She also stated that she remained with Vinod, accused, for 3-4 days. She further stated that Vinod had been pressurizing her to perform marriage with him and thereafter, she performed marriage with him. However, when she was confronted with her previous statement, before the Police, it was not found recorded therein that accused vinod had pressurized her to perform marriage with him or that he and his family members had threatened her that if she told anything to anyone, the result would be serious. So she made a material improvement, in this regard, over her statement, which was earlier made by her before the Police. So she made a material improvement, in this regard, over her statement, which was earlier made by her before the Police. She did not make a statement before the Magistrate that Vinod, accused had allured or forced her to perform marriage with him. She also stated that she had not deposed before the Magistrate, about the threats, having been given to her by the accused, for marriage with him. Since she made an improvement, in her statement,in the Court vis-a-vis, her previous statement, made before the Police, such improved version could not be taken into consideration. The fact remains that she was neither induced nor threatened by the accused to accompany him to various places and perform marriage with him. She remained with Vinod, accused, for a number of days, but he did not commit sexual intercourse with her. This also clearly showed that she was not kidnapped by Vinod, accused, but accompanied Vinod of her own accord. 14. The next question that arises for consideration, is as to whether, the accused committed offence, under Sections 363 and 366 IPC, especially when the prosecutrix was below 18 years of age, at the time of the alleged occurrence. The offence of kidnapping, from lawful guardianship, is defined in the first paragraph of Section 361 of the Indian Penal Code, which reads as under :- "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." 14-A. It is apparent, from the provisions of Section 361 of the Indian Penal Code, that taking or enticing away a minor out of the keeping of a lawful guardian, is an essential ingredient of the offence of kidnapping. It is to be determined, as to whether, the part played by the appellant amounts to "taking" out of the keeping of the lawful guardianship of the parents of the prosecutrix. It has been held above, that the prosecutrix, of her own, went to meet Vinod; accompanied him to various places; as she was having love affairs with him, which fact is evident from letters Ex.DB and DC; and performed marriage with him voluntarily. It has been held above, that the prosecutrix, of her own, went to meet Vinod; accompanied him to various places; as she was having love affairs with him, which fact is evident from letters Ex.DB and DC; and performed marriage with him voluntarily. From the circumstances, narrated above, it could not be said that she was taken out of the keeping of the lawful guardianship of her parents by the accused. No evidence was also produced by the prosecution that immediately prior to the alleged occurrence, some active part was played by the accused, or he had at some earlier stage, solicited or persuaded the minor to leave the house of her parents. Thus, the essential ingredients, required for constituting the offence, punishable under Section 363 of the Indian Penal Code, that the prosecutrix was taken or enticed away out of the keeping of lawful guardianship, were not proved. Since it was not proved that the prosecutrix was enticed away by the accused, the question of seducing her to illicit intercourse, did not at all arise. There is no evidence, on record, that the accused ever committed sexual intercourse with the prosecutrix or even made an attempt to do so. In S. Vardarajan v. State of Madras, AIR 1965 (SC) 942, a case decided by three Honble Judges of the Apex Court, it was observed as under :- "But when the girl (who though a minorhad attained the age of discretion and is one on the verge of attaining majority and is a senior college student) from the house of the relative of her 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 waiting with his car gets into that car of her own accord, and the accused takes her to various places and ultimately to the Sub Registrars office, where they get an agreement to marry registered, and there is no suggestion that this was done by force or blandishment of 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, in which the desire of accompanying him wherever he went is of course implicit. Under these circumstances no inference can be drawn that the accused is guilty of taking away the girl out of the keeping of her father. She willingly accompanied him and the law does not cast upon him the duty of taking her back to her fathers house or even of telling her not to accompany him. There is a distinction between taking and allowing a minor to accompany a person. The two expressions are not synonymous though it cannot be laid down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purpose of Section 361. Where the minor leaves her fathers protection knowing and having capacity to know the full import of what she is doing, voluntarily joins the accused person, the accused cannot 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 participation by him in the formation of the intention of the minor to leave the house of the guardian." 15. The facts of S. Varadarajans case (supra), are almost identical to the facts of the instant case. The ratio of law, laid down, in the aforesaid case, is fully applicable to the facts of the instant case. The ingredients, required for constituting the offence, under Section 366 of the Indian Penal Code, were also not fulfilled, in the instant case. Similar principle of law, was also laid down in Narinder v. State of Haryana, 1991(2) R.C.R, (Criminal) 217 : (2003(3) RCR (Crl.) 721) and Anil Kumar alias Sunil v. State of Haryana, (2009(3) All India Criminal Law Reporter 66, The trial Court, was, thus, wrong in coming to the conclusion that the accused committed the offences, punishable under Sections 363 and 366 of the Indian Penal Code. The finding of the trial Court, in this regard, is liable to be reversed. 16. No other point, was urged, by the Counsel for the parties. 17. The finding of the trial Court, in this regard, is liable to be reversed. 16. No other point, was urged, by the Counsel for the parties. 17. In view of the above, it is held that the judgment of conviction and the order of sentence rendered by the trial Court are not based on the correct appreciation of evidence and law on the point. The trial Court did not take into consideration the aforesaid infirmities and lacunae, in the prosecution evidence and thus fell into a grave error in recording conviction and awarding sentence to the accused. The judgment of conviction and the order of sentence are thus liable to be set aside. 18. For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction dated 21.07.2003, and the order of sentence dated 23.07.2003, are set aside. The appellant shall stand acquitted of the charge, framed against him. If, he is on bail, he shall stand discharged of his bail bonds. If, he is incustody, he shall be set at liberty at once, if not required in any other case. 19. The Chief Judicial Magistrate, shall comply with the judgment promptly. Appeal accepted.