Delhi High Court
Rakesh @ Bhagwan vs State (Nct Of Delhi) on 24 August, 2006
Author: B D Ahmed
Bench: B D Ahmed
JUDGMENT
Badar Durrez Ahmed, J.
1. This revision petition has been preferred against the order on charge dated 28.11.2005 and the charge itself framed on the same day.
2. The petitioner has been charged on three counts. The first charge against him is that on 13.9.2004 at about 10.15 a.m. from the way near House NO. 288 Village Barwala, Delhi within the jurisdiction of Police Station Bawana, the petitioner allegedly kidnapped Pinki, daughter of Hari Ram, who was supposed to be a minor girl aged about 17 years from the lawful guardianship of her parents and, thereby committed an offence under Section 363 IPC. The second charge is under Section 366 IPC and the third is under Section 365 IPC.
3. The learned Counsel for the petitioner submits that insofar as the charge under Section 363 IPC is concerned, it can be levelled only if the person who is allegedly kidnapped, is a minor under the age of 18 years as indicated in Section 361 IPC. He submitted that as per the School Certificate, which forms part of the charge sheet, the prosecutrix would not be a minor on the date of the incident as her date of birth has been disclosed as 6.11.1985 and the date of the incident is of September, 2004. Therefore, on the date of the incident, she would be clearly of 18 years of age. According to the learned Counsel for the petitioner, therefore, the charge under Section 363 even on the basis of the material contained in the charge sheet and documents accompanying, is not made out. I have examined this aspect of the matter and heard the arguments of both sides and I feel that the learned Counsel for the petitioner is correct. The charge under Section 363 can be framed against the petitioner only if the prosecutrix was a minor which means that she ought to have been below the age of 18 years on the date of the incident. Clearly, even as per the prosecution case, the age of the prosecutrix shows that she was over 18 years of age and, therefore, the charge under Section 363 IPC is not made out.
4. The learned Counsel for the petitioner next contended that the charge under Section 366 IPC is also not made out as there are no allegations contained in the prosecution case which would satisfy the ingredients of Section 366 IPC. There is no accusation that the petitioner had any intent to compel the prosecutrix to marry him against her will or to force or seduce her to illicit intercourse. Even her Section 164 Cr.P.C. statement made before the Metropolitan Magistrate does not disclose any such ingredients. The only allegation is that she was forcibly taken by the petitioner. The learned Counsel for the State could not point out any specific allegation to indicate either the intent of marriage or any intention of forcing or seducing the prosecutrix to illicit intercourse. Therefore, on the basis of the prosecution case alone, the ingredients of Section 366 are not made out and, therefore, the charge under Section 366 also cannot be framed against the present petitioner.
5. Lastly, the learned Counsel for the petitioner contended that even the charge framed under Section 365 is not made out. However, after examining the statement of the prosecutrix before the learned Metropolitan Magistrate, it is abundantly clear that she has stated that she was forcibly taken and kept for a period of one month. Therefore, there is a clear case for framing of the charge under Section 365 IPC.
6. In view of the foregoing discussions, the impugned orders are modified to the extent that the petitioner is discharged of the offences under Section 363 and 366 IPC. The petitioner will face trial for the charge under Section 365.
7. This revision petition stands disposed of.
8. The Trial Court Record be returned immediately.
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