Amar Pal Yadav & Ors v. State & Ors

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+

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

¶1Whether the Reporters of local papers may be allowed to see the judgment? No

¶2To be referred to the Reporter or not? No

¶3Whether the judgment should be

No

reported in the Digest?

: V.K. JAIN, J. (Oral)

¶1Statement 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 22nd 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.

¶2In 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.

¶3The 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.

¶4In '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.

¶5In '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.

¶6In '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.

¶7In '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.

¶8In '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.

¶9The 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.

¶10No 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