1 IN THE COURT OF MS. SUNITA GUPTA : DISTRICT JUDGEVIICUM ADDITIONAL SESSIONS JUDGE : NORTHEAST DISTRICT : KARKARDOOMA COURTS : DELHI : [CASE NUMBER] Unique Case ID No. 02402R0081902009 State Vs. [ENTITY] S/o [ENTITY], R/o A100/2, 4 Pusta, Som Bazar, South Gamri, Delhi. FIR No. 210/08 PS New Usmanpur U/[SECTION] [ACT]. Date of Institution : 22.03.2010 Date of reserving the Judgement : 17.07.2010 Date of pronouncement : 17.07.2010 J U D G E M E N T :
Police machinery was set in motion on report lodged by Sh. [ENTITY] regarding missing of his daughter [ENTITY] (name changed), aged about 16 years, since 08.09.08. He suspected [ENTITY], son of [ENTITY]. On the basis of his complaint, case under [SECTION] [ACT] was registered. During the course of investigation, prosecutrix was recovered and was got medically examined. Her statement u/[SECTION] [ACT] was recorded. She was sent to [ENTITY]. As per birth certificate, she was born on 01.09.91, while as per ossification test, she was opined to be 1921 years. After seeking legal opinion, challan was submitted under [SECTION] [ACT].
2. Charge for offences punishable under [SECTION] and [SECTION] [ACT] was framed against the accused, to which charge he pleaded not guilty and claimed trial.
3. To substantiate the charge, prosecution has examined [ENTITY] (PW1), [ENTITY], Medical Record Clerk (PW2), [ENTITY] (PW3), [ENTITY], Head Constable (PW4), [ENTITY] ASI (PW5) and Sh. [ENTITY], MM (PW6) in the case.
4. In order to afford an opportunity to explain circumstances appearing in evidence against the accused, he was examined u/[SECTION] [ACT] He denied all allegations levelled against him. His case has been of denial simpliciter. He claims his innocence. However, he opted not to lead any evidence in his defence.
5. [ENTITY] (PW1) unfolds that on 08.09.2008, she of her own consent/will went along with [ENTITY] to Aligarh and after getting married with accused [ENTITY], at Mathura, she came back to Delhi and went to PS Usmanpur of her own on 12.09.2008. She stated all these facts to the police officials. She was produced at Karkardooma Courts. Her statements were recorded by the ld. Magistrate and thereafter she was sent to [ENTITY]. Accused [ENTITY] was known to her as he used to work in a factory and in the same premises, where she along with her parents used to reside as tenant. Accused was known to her since her childhood and both of them were in love with each other. When her father came to know regarding their love affairs, he used to beat her on this account and used to abuse her and that is why she of her own went along with [ENTITY] to village Patna (UP) on 08.12.2008, got married with him and came back to Delhi. [ENTITY] did not develop physical relations with her till she came back to Delhi. She has been residing with [ENTITY] for the last one year and one month, separately at Gamri, Delhi. As on date today, she is pregnant from the loins of [ENTITY] and she is carrying pregnancy of five months. She is living happily with her husband [ENTITY]. Her father made a wrong complaint against 3 [ENTITY]. She married herself with [ENTITY]. She has no grudge against accused [ENTITY].
When this witness did not unfold true facts of the case, she was cross examined by the ld. Prosecutor at length. In her crossexamination by the ld. Prosecutor, she testified that she has studied upto 9th standard, but could not pass 9th class. She admits that she was born in Hindu Raio Hospital as told by her parents. She had seen photocopy of [ENTITY]/declaration letter entered into between her and [ENTITY]. The same is mark A. She had stated her age as 20 years in that [ENTITY]. She did not produce any proof of the date of birth regarding her age. She volunteered that the same was not available with her. She had stated her age as 20 years by way of approximation. She further admits that name of her father is [ENTITY] and name of her mother is [ENTITY]. She denied the suggestion that her date of birth is 01.10.1991. Her parents had procured her date of birth certificate issued by Subregistrar (Birth and Death), Civil Line Zone, MCD, Delhi. She cannot tell her date of birth. She also denied that she knew her date of birth as 01.09.1991 or that she is deliberately not telling her date of birth or that she want to save [ENTITY] from legal punishment as on that day he had become her husband. She also testified that she has two brothers and one sister. She is the eldest child of her parents. [ENTITY] is next to her. She could not say, if her brother [ENTITY] next to her is younger to her by one or two or three or five or ten years. She did not know as to her second brother [ENTITY] (she is not sure about his name, perhaps his name is [ENTITY]) and her sister [ENTITY], are how many years younger than her. [ENTITY] was perhaps a student of 5th or 6th class when she had gone along with [ENTITY]. [ENTITY] was one year old on that day when she had gone along with [ENTITY]. She denied the suggestion that she is deliberately deposing regarding age of her 4 brothers and sister so that her exact age should not come on record. She also denied the suggestion that she was below 18 years of age when [ENTITY] had taken her along with him. She also denied the suggestion that she is deposing falsely to save her husband [ENTITY]. She never made any complaint till today that her father got fabricated her date of birth certificate from Municipal Authority. She denied the suggestion that she did not make such complaint before any authority because date of birth certificate mark B is a true and correct certificate issued by Municipal Authority. When this witness was crossexamined by the ld. Defence counsel, she admitted that when she came at PS, her date of birth certificate was not there and due to this reason she was called for bone age determination at GTB Hospital. She was 19 years of age as per that report. She admitted that she herself had gone along with [ENTITY] of her sweet will. She admitted that [ENTITY] did not commit any wrong with her. She also admitted that she was above 18 years of age and that she had married with [ENTITY] of her free consent. She admitted that before marriage, she was in love with [ENTITY] and this fact was in knowledge of her parents. She admitted that her parents did not like [ENTITY] and they wanted to get her married with some other person. She was threatened by her parents that they would kill her, if she happened to marry with [ENTITY]. Her parents are still threatening to kill her husband. She has been residing with [ENTITY] since the date of her marriage, without any pressure or force. She also admitted that her parents are threatening and interfering in her married life, to the effect to leave [ENTITY] or to get married with some other person according to their wishes.
PW2 [ENTITY], Medical Record Clerk, proved photocopy of birth certificate of a female as Ex.PW2/A, which was verified by Mr. [ENTITY], Assistant Public Health Inspector, and was issued by Sh. [ENTITY], Subregistrar 5 (Birth and Death) with whose signature he was well conversant. As per said certificate, name of mother of female child is [ENTITY] and name of father is [ENTITY]. The female child was born at Hindu Rao Hospital on 01.09.1991. He deposed that said certificate has already been issued on the basis of true birth record.
PW3 [ENTITY] is father of prosecutrix [ENTITY]. He deposed that her date of birth was 01.09.991. She was born at Hindu Rao Hospital. He had given copy of birth certificate to the police officials. He had seen the birth certificate of [ENTITY]. The same is Ex.PW2/A. On 08.09.2007, again said on 08.09.2008 when he went to PS to lodge report regarding missing of her daughter, he had named [ENTITY], who reside at Kartar Nagar, South Gamri, that he had taken her daughter. He was mislead by ASI [ENTITY] regarding lodging the FIR. His FIR was not lodged initially for four or five days and he used to misguide him by saying that he would bring her daughter. ASI [ENTITY] made him to sit at PS, the whole and thereafter he telephoned his daughter and she came at the PS. On 12.09.2008, her daughter [ENTITY] came at PS. He saw the document Ex.PW1/B. His daughter was taken to hospital for medical examination. He and his family members were not allowed by ASI [ENTITY] to accompany [ENTITY] to the hospital. From the hospital, her daughter was produced before the Court at Karkardooma Courts. Investigating Officer got the medical examination of her daughter of his own and they were not allowed to say anything at the hospital. After recording the statement of her daughter by ld. MM, she was sent to [ENTITY]. On the date of occurrence, his daughter was 17 years plus. He further deposed that he has no relation with his daughter as on today, he has nothing more to say.
[ENTITY], Head Constable (PW4) recorded FIR in the case and 6 proved copy of the same as Ex.PW4/A. ASI [ENTITY] (PW5) unfolds that on 11.09.2008, he was posted at PS New Usmanpur. Constable [ENTITY] gave him copy of FIR of the case, as investigation was assigned to him. He along with Constable [ENTITY] and complainant [ENTITY] went in the area of Kartar Nagar in search of [ENTITY] and accused [ENTITY], but they could not be traced. On 12.09.08, prosecutrix [ENTITY] along with her father [ENTITY] came at the police station. ASI [ENTITY] joined the investigation. Inquiries were made from the prosecutrix. He prepared recovery memo of [ENTITY] vide Ex.PW1/B. He recorded statement of prosecutrix [ENTITY]. He along with ASI [ENTITY] and [ENTITY], father of prosecutrix, had taken prosecutrix [ENTITY] for GTB Hospital for medical examination including the bone age. Prosecutrix refused to undergo her internal medical examination. Prosecutrix was produced before the concerned Court at Karkardooma Courts to record her statement under [SECTION] [ACT] and the same was recorded on the same day. His application to record statement of prosecutrix u/[SECTION] [ACT] and to obtain copy of statement u/[SECTION] [ACT] is Ex.PW5/A and Ex.PW5/B respectively. He moved an application to send prosecutrix to [ENTITY] vide Ex.PW5/C, and accordingly she was sent to [ENTITY]. On 18.09.2008, accused produced himself before the concerned Court. He attended the Court and after obtaining the prior permission of the Court, he interrogated accused [ENTITY] and recorded his disclosure statement vide memo Ex.PW5/D. He formally arrested accused [ENTITY] vide arrest memo Ex.PW5/E. Accused was produced before the concerned Court and later on he was released on bail by the Hon'ble Court. Father of [ENTITY] produced date of birth certificate issued by MCD, wherein date of birth of [ENTITY] was mentioned as 01.09.1991. He got verified the same. The same is Ex.PW2/A. He also collected bone age of prosecutrix, 7 wherein her age was opined to be between 1921 years. On 27.09.2008, prosecutrix [ENTITY] was again produced before the concerned Court from the [ENTITY] and by the order of the Court, she was set free and she along with her husband went from there.
Sh. [ENTITY], Metropolitan Magistrate, (PW6), deposed that an application was moved by ASI [ENTITY] for recording statement of prosecutrix u/[SECTION] [ACT] before the Court of [ENTITY], ld. MM, which was marked to him, being the link MM. On 12.09.08, prosecutrix [ENTITY] was produced before him by ASI [ENTITY] and lady ASI [ENTITY]. Prosecutrix was identified by the investigating officer and thereafter he directed the investigating officer to leave his chamber. After ascertaining the voluntary nature of prosecutrix [ENTITY], he recorded his statement u/[SECTION] [ACT] which is Ex.PW1/A, wherein prosecutrix unfolds that she was residing with her parents, brothers and sisters. Accused [ENTITY] was known to her for about eight months. They were in love with each others. Her family members used to illtreat her. Therefore, she along with accused [ENTITY] went to Patna, U.P on 08.12.08. On the following day, they went to Mathura where they got married in a temple. On 11.09.08, they returned to Delhi and reached at the house of [ENTITY]. Mother of [ENTITY] gave telephone call to police. Police reached there and took her to PS. She also stated that accused [ENTITY] did not do anything wrong with her. She wanted to live with accused [ENTITY].
After recording aforesaid statement of prosecutrix, ld. MM, he gave his certificate regarding correctness of the statement, which bears his signature at point B1. He also proved application, whereby copy of said statement was supplied to investigating officer, as Ex.PW5/B.
6. ld. Prosecutor tendered the MLC of prosecutrix since the same was not 8 objected by ld. Defence counsel and the same is Ex.PX. This in nutshell is the evidence available on record to show that prosecutrix was known to accused from childhood. They were having love affairs. However, father of prosecutrix was against the same and he used to beat and abuse her. As such she went along with accused on 08.12.08 to village Patna, U.P., got married with him, and then came back to Delhi. Now she is residing with the accused for last one year and one month, and is in living in family way. Even when she was produced before the doctor, the history given by her was of running away along with [ENTITY]. When she was produced before ld. Magistrate for the purpose of recording her statement u/[SECTION] [ACT], even at that time she stated that she was having love affairs with the accused. Her family members were against this relation, therefore on 08.12.05 she had gone with [ENTITY] to the house of his aunt at village Patna, U.P. On the next day, they went to Mathura where they got married in a temple. Thereafter, they returned back to Delhi on 11.09.08 and went to the house of [ENTITY]. His mother informed the police. Police came and took both of them to police station. Under these circumstances, it is not the case where it can be said that prosecutrix was taken or induced by the accused.
7. In order to attract [SECTION] [ACT], it is incumbent upon the prosecution to prove following ingredients : (1) There must be taking or inducement of a minor or a person of unsound mind. (2) Minor must be under 16 years of age, if a male or under 18 years of age, if a female.
(3) Taking or inducement must be out of keeping of lawful guardianship of minor or person of unsound mind, and (4) Taking or inducement must be without consent of guardian of minor or person of unsound mind.
8. The word 'takes' or 'entices' used in [SECTION] [ACT] are quite significant. The word 'takes' has been defined in the dictionary meaning 'cause to come or go with one, or to get into possession'. When the accused takes the minor with him whether she is willing or not, the act of taking is complete. The word "entices" involves an idea of inducement by exciting hope or desire in the other. Similarly, the word "induces" used in [SECTION] [ACT] is quite significant. Case would fall within the mischief of [SECTION] [ACT] only if the prosecution is able to prove that it was either taking or enticing the minor or there had been inducement. The word "induce" means to prevail on, to bring about, to persuade; as defined in Law Lexicon by [ENTITY].
9. Matter came up for consideration before Hon'ble Supreme Court in AIR 1965 SC 942, [ENTITY] vs. State of Madras, while dealing with the case of a minor girl, who was on the verge of attaining majority and who herself telephoned the accused to meet her and finding him waiting with his car, got into that car of her own, it was held that the accused was not guilty of taking out the girl out of the lawful guardianship of her father as there was no suggestion that the act was done by force or anything like that on the part of the accused. This judgement was relied upon in [PRECEDENT] and following portion from the judgement of [ENTITY] (supra) was quoted :
"But when the girl (who though a minor had attained the age of discretion and is on the verge of attaining majority and is a senior college student) went from the house of the relative of 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 Subregistrar's office where they 10 get an agreement to marry registered, and there is no suggestion that this was done by force or blandishment or 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 has willingly accompanied him and the law does not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him."
10. These authorities were relied upon subsequently in [PRECEDENT].
11. Hon'ble High Court had relied upon Vivek Kumar @ [ENTITY] and another vs. the State and another in Crl.[CASE NUMBER] decided on 23.02.07, wherein it was observed as under : "There is no law which prohibits a girl under 18 years from falling in love with someone else. Neither falling in love with somebody is an offence under [ACT] or any other penal law. Desiring to marry her love is also not an offence. A young girl, who is in love has two courses available to her one is that she should marry with the consent of her parents after obtaining the consent of her parents. If her parents do not agree to persuade them or to wait for attaining the age of majority and then exercise her right as a major to marry the person of her own choice. However, this is possible only when the house of her parents where she 11 is living has congenial atmosphere and she is allowed to live in peace in that house and wait for attaining age of majority. This might have been the reason in the mind of petitioner No.2 when she told her father that she was in love and wanted to marry [ENTITY], but the response of father when daughter confided in him, created the fear in the mind of petitioner No.2. Her father slapped her and told that her action would malign the religion and bring danger to the religion. He even threatened to kill her and marry her off to some rich person. When once such a threat is given to a girl around 17 years of age, who is in love, under such circumstances she has a right to protect her person and feeling against such onslaught of her relatives even if the onslaught is from her own parents. Right to life and liberty as guaranteed by the [ACT] is equally available to minors. A father has no right to forcibly marry off his daughter, who is below 18 years against her wishes. Neither he has a right to kill her, because she intends to marry out of her religion. If a girl around 17 years of age runs away from her parents house to save herself from the onslaught of her father or relatives and joins her lover or runs away with him, it is no offence either on the part of the girl or on the part of the boy with whom she ran away and married."
12. [ENTITY] Singh vs. State, 2006 (I) RCR (Crl.) 653 was also a case, where FIR was registered under [SECTION] [ACT], PS Sarojini Nagar. Direction was given to produce the prosecutrix. When she appeared in the Court, she stated that she had solemnized marriage with accused of her own accord in a temple of Delhi. They cohabit together, stayed at different places in Bihar and that she was neither forced or taken away. She had married with accused of her own choice. She claimed that she was 19 years old. However, her father claimed that she was 14 years old, as per school leaving certificate. In view of the statement of prosecutrix, Hon'ble High Court observed that continuous criminal proceedings 12 under [SECTION] [ACT] would be an exercise in futility. Besides, it would also be detrimental to matrimonial life of the couple and of the infant. Prosecutrix being around 17 years of age, on the verge of majority, having reached an age of discretion, had accompanied accused of her own volition, without any kind of enticing or inducement or force from anyone. There was, thus, no taking away or enticing away of minor out of keeping of lawful guardian. Essential ingredients of offence of kidnapping are missing. Relying upon [ENTITY] (supra), FIR was quashed.
13. Present case squarely falls within the four corners of these authoritative pronouncements, as it has come on record that prosecutrix herself had gone with the accused, married him and is living happily with him.
14. Only question for consideration comes as to the age of prosecutrix. In this regard, prosecutrix has given her age as 21 years. According to her, at the time of [ENTITY]/declaration letter entered into between her and [ENTITY]. She had stated her age as 20 years by way of approximation. She denied that her date of birth is 01.09.91 or that at that time when she had gone with accused she was below 18 years. She admitted that when she had gone to police station at that time her date of birth certificate was not there and due to this reason she was sent to GTB Hospital for ossification test. As per report, her age is 19 years.
15. PW2 [ENTITY], Medical Record Clerk, Civil Line Zone, deposed that photocopy of birth certificate is Ex.PW2/A has been issued by Mr. [ENTITY], Assistant Public Health Inspector, and as per this certificate a female child was born at Hindu Rao Hospital on 01.09.1991. According to him, this birth certificate was issued on the basis of true birth record.
16. PW3 [ENTITY], father of prosecutrix, has deposed that date of birth of prosecutrix is 01.09.1991. He produced birth certificate Ex.PW2/A to the police 13 officials. In crossexamination, he admitted that when he had lodged the report with police regarding missing of his daughter at that time, he did not give date of birth proof of his daughter. His daughter was student of class 9th. He had give birth certificate at the time of her admission. However, he went on stating that he got recorded less age of his daughter in the school record as she failed twice during her schooling. He denied the suggestion that he fabricated birth certificate of his daughter from MCD authorities. According to him, in the photocopy of progress card, on which date of birth of his daughter is mentioned as 10.12.92. ASI [ENTITY], investigating officer of the case, has deposed that when missing report was lodged by father of prosecutrix at that time he did not give any proof regarding her age. When prosecutrix was recovered on 12.09.08 at that time, she gave her age as 19 years. At that time, her father did not give any proof to show that age given by her is wrong. Since no document was filed regarding age of prosecutrix, as such ossification test was got conducted. Even at the time of recording statement of prosecutrix u/[SECTION] [ACT], no proof of age was furnished. He received ossification report after three or four days till that time no proof of age was given by parents of the prosecutrix.
17. In MLC Ex.PX, prosecutrix has given her age as 19 years.
18. Aforesaid evidence led by the prosecution goes to show that according to Sh. [ENTITY], prosecutrix was born at Hindu Rao Hospital on 01.09.91. It was admitted by him that his daughter went missing and he lodged report with police. At that time, he was not having birth certificate with him and the same was missing, and therefore he obtained fresh certificate from municipal authorities and handed over the same to investigating officer. Since no proof of age of prosecutrix was available with investigating officer, therefore he got the bone age of prosecutrix conducted from hospital authorities and as per ossification report 14 her age was opined to be more than 19 years and less than 21 years. The complainant also gave the photocopy of progress card of his daughter, who was student in his school, on which her date of birth was mentioned as 10.12.92. He admitted that he got recorded less age of his daughter in the school as she failed twice during her schooling.
19. The result of the aforesaid discussion is that different versions are coming on record regarding age of prosecutrix. One is in the form of her birth certificate, according to which her date of birth is 01.10.91. According to progress card, produced by father of prosecutrix, her date of birth is 10.12.92, and another record is that when prosecutrix was produced for ossification report, her age was opined to be between 1921 years. It is settled principle of law, if two sets of evidence are coming on record, then one which favours the accused should be adopted.
20. [ENTITY] has also deposed that when prosecutrix had left the house, at that time she was 17 plus. Even if it is taken that birth certificate produced by father of prosecutrix has to be given preference, according to which her date of birth is 01.10.91, and as such she was less than 18 years of age at the relevant time. It cannot be ignored that prosecutrix and accused are now leading a happy married life and prosecutrix was carrying pregnancy of five months, when she came to depose in the Court on 03.05.2010.
21. [PRECEDENT] was a case where a minor girl around 17 years fell in love with a boy. Her father threatened to kill her. She fled away with the boy and married him to escape from onslaught of her father. Hon'ble High Court took note of the admitted fact that they were living together after marrying each other and were blessed with a male child, who was still infant. The only hurdle was that she was 16 years and 6 months of age 15 and thus was minor at the time of commission of alleged offence. It was observed that only because of this reason, they cannot be denied the relief of quashing of FIR, inasmuch as, this course of action is in the interest of justice of not only husband, but also wife and her child. The prosecution is launched on the allegations that petitioner No.2, that is, wife is the victim of crime. However, if husband is now prosecuted and convicted, again it would be wife who shall become victim in that eventuality. Additional victim would be small child. Both of them would be rendered without any financial support and the consequences can be disastrous. The Court cannot compound her sufferings and miseries more so when she willingly went with the accused to marry him. Thus, the FIR was quashed.
These observations are fully applicable to the fact of the case in hand, inasmuch as, even if the birth certificate is accepted as correct even then the prosecutrix is on the verge of attaining majority, having reached the age of discretion. She had accompanied the accused [ENTITY] of her own volition, without any enticement or inducement or force from any one. Under these circumstances, there was no taking away or inducement of a minor out of keeping of lawful guardianship. Essential ingredients of offence of kidnapping are missing. As such accused is entitled to acquittal for offence punishable u/[SECTION] [ACT].
22. Even offence u/[SECTION] [ACT] is not proved, inasmuch as, according to prosecutrix accused did not develop physical relations with her till the time she came back to Delhi. As such there is nothing to show that prosecutrix was taken by the accused with intention that she would be forced to illicit intercourse. As such even offence u/[SECTION] [ACT] is not made out.
23. Keeping in view the totality of facts and circumstances of the case, in 16 order to meet ends of justice, accused is acquitted of the charge. Prosecution has failed to prove its case against the accused. Bail bonds of accused are discharged. File be consigned to Record Room.
Announced in the Open Court ([ENTITY]) th
On this 17 day of July, 2010. District JudgeVII/NEcumASJ, Karkardooma Courts, Delhi.