Amar Pal Yadav & Ors. vs State & Anr.
2010 Latest Caselaw 919 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       Crl.M.C. 3370/2009

                              Date of Order: 17th February 2010

#      AMAR PAL YADAV & ORS.                 ..... Petitioners
!                       Through:         Mr. Vikas Yadav, Adv.

                        versus

$      STATE & ANR.                           ..... Respondent
^                             Through:   Mr. Jaideep Malik, APP.


*      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 Pooja, daughter of complainant/respondent

No.2 Rajwati recorded. According to her, she had left the house

of her parents of her own without any kind of promise,

inducement or persuasion from petitioner No.1 Amar Pal Yadav.

She has further stated that she married him of her own on 22 nd

August 2009 without any persuasion, threat, pressure or

coercion from him. She also says that Amar Pal Yadav did not

play any role in her leaving the house of her parents and joining

him for marriage with him.

2. In her statement, the complainant/respondent No.2 Rajwati

has stated that she has accepted the marriage of Pooja with

petitioner No.1 and has no objection if FIR No. 181/2009 lodged

by her at Police Station Harsh Vihar, under Sections 363/368/34

of IPC is quashed. Her only request is that her daughter and

son-in-law must keep on visiting her and must keep maintain

cordial relations with her family.

3. The FIR was registered under Section 363 of IPC on a

complaint made by the mother of Pooja. 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.

4. 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.

5. 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.

6. 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.

7. 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 fourteen 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.

8. 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.

9. 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.

10. No offence punishable under Section 363 of IPC is made

out against petitioner No. 1 merely on account of his having

accompanied Pooja or having married her with her consent.

Hence, FIR No. 181/2009 lodged by respondent No.2 Smt.

Rajwati at Police Station Harsh Vihar, under Sections

363/368/34 of IPC and the proceedings arising therefrom are

hereby quashed.

Crl.M.C. 3370/2009 stands disposed of.

(V.K. JAIN) JUDGE FEBRUARY 17, 2010 Ag