Delhi High Court
Pawan Kumar & Anr. vs State & Ors. on 15 February, 2010
Author: V. K. Jain
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(CRL.)905/2009
% Date of Order : 15th February, 2010
# PAWAN KUMAR & ANR. ..... Appellant
! Through: Ms. Purnima Sethi, Adv.
versus
$ STATE & ORS. ..... Respondent
^ Through: Mr. Sanjeev Bhandari, ASC
* CORAM:
HON'BLE MR. JUSTICE V.K. JAIN
1. Whether the Reporters of local papers
may be allowed to see the judgment? No
2. To be referred to the Reporter or not? No
3. Whether the judgment should be No
reported in the Digest?
: V.K. JAIN, J. (ORAL)
1. Statement of petitioner No.2 recorded. She has been
identified by ASI Mahabir Singh of Police Station Welcome
Colony. According to petitioner No.2, she had left the house of
her father of her own, without any inducement or coercion from
petitioner No.1 and, thereafter, she married him on 27 th June,
2009. She further says that she had married petitioner No.1 of
her own, without any coercion, inducement, pressure or threat
etc. from him. She maintains that her correct date of birth is
31.5.1991. According to IO, Inspector R.K.Jha, who is present in
the Court, as per the School Leaving Certificate of petitioner
No.2, her date of birth is 18.11.1991 and she was about
seventeen and a half year old when she left the house of her
father.
2. The FIR was registered under Section 363 of IPC on a
complaint made by the father of petitioner No.2. In order to
constitute offence punishable under Section 363 of IPC, there
has to be taking or enticing of a minor from the lawful
guardianship of her parents/guardian. If the minor, of her own,
abandons the guardianship of her parents and joins a boy,
without any role having been played by the boy in her
abandoning the guardianship of her parents and without her
having been subjected to any kind of pressure, inducement, etc.
and without any offer or promise from the accused, no offence
punishable under Section 363 of IPC will be made out when the
girl is aged more than 16 years and is mature enough to
understand what she is doing. Of course, if the accused lays a
foundation by inducement, allurement etc. and that influences
the minor or weighs with her in leaving her guardian's custody
and keeping and going with the accused then it is difficult to
accept that the minor had voluntarily come to the accused.
3. In "Shyam & Another Vs. State of Maharashtra", 1995
Criminal Law General 3974, the prosecutrix was a grown-up girl,
though she had not touched 18 years of age. She claimed during
trial that she was kidnapped under threat. The evidence
produced during trial showed that she was seen going on the
bicycle of the accused. The Hon'ble Supreme Court noted that it
was not unknown to her with whom she was going and therefore,
it was expected of her then to jump down from the bicycle or put
up the struggle and in any case raise an alarm to protect herself.
As no such steps were taken by her, the Hon'ble Supreme Court
felt that she was a willing party to go with the appellants of her
own and, therefore, there was no taking out of the guardianship.
The appellants were acquitted of the charge under Section 366
of IPC.
4. In "State of Karnataka vs. Sureshbabu", 1994
Crl.L.J.1216(1), it was found that the girl went with the accused
voluntarily. It was held by the Hon'ble Supreme Court that the
requirement of Section 366 of IPC is that taking or enticing away
a minor out of the keeping of the lawful guardianship was an
essential ingredient of the offence of kidnapping. It was held
that in such a case, it is difficult to held that the accused had
taken her away from the keeping of her lawful guardian and
something more has to be shown in a case of this nature, like
inducement.
5. In "Mahabir vs. State" , 55(1994)DLT 428, the appellant
and the prosecutrix were known to each other. The appellant
took the prosecutrix to a place outside Delhi where they stayed
for about fifteen days and had sexual intercourse with each
other. The appellant was convicted under Sections 366 and 376
of I.P.C. A learned Single Judge of this Court noticed that she
had gone to Railway Station, had stood there with the appellant
who also went to purchase tickets and then she had travelled
with him in a compartment shared by other persons. She had
then gone to a house in a tonga and yet she did not lodge any
protest and made no attempt to flee despite having ample time
and opportunity. The learned Single Judge noted that on the day
of reckoning, she surely had crossed mark of sixteen years and
since she was all along a willing party, the appellant was
acquitted of both the charges against him. Thus, despite the
prosecutrix being less than eighteen years of age, the appellant
was acquitted not only of charge under Section 376 but also of
the charge under Section 366 of I.P.C.
6. In "Piara Singh vs. State of Punjab", 1998(3) Crimes 570,
the High Court found that the prosecutrix was more than sixteen
years of age at the time of this incident, though, the case of the
prosecution was that she was forteen years of old at that time.
Since the High Court came into conclusion that no force was
used in having sexual intercourse with him, the appellant was
acquitted not only of charge under Section 376 but also of
charge under Section 366 and 366-A of Indian Penal Code. In
this case also, the prosecutrix was not found to be more than
eighteen years of age.
7. In "Bala Saheb vs. State of Maharashtra", 1994 Criminal
Law General 3044, it was found that the prosecutrix
accompanied the appellant/accused from her village and stayed
with him for two to three days. It was held that these
circumstances clearly show that offence under Section 363 or
366 of I.P.C. was not made out.
8. The case of the petitioner before this Court stands on a
much stronger footing as the girl, who is present in the Court
herself is saying that no promise or inducement was extended to
her by the boy and she of her own had abandoned the
guardianship of her parents and had joined him, in order to
marry him.
9. No offence punishable under Section 363 of IPC is made
out against petitioner No. 1 merely on account of his having
accompanied petitioner No.2 or having married her with her
consent.
Hence, FIR No. 130/2009 lodged by her father at Police
Station Welcome Colony, under Section 363 of IPC and the
proceedings arising therefrom are hereby quashed.
W.P.(CRL) 905/2009 stands disposed of.
(V.K.JAIN)
JUDGE
FEBRFUARY 09th , 2010
'sn'
