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2016 Supreme(Del) 2022
IN THE HIGH COURT OF DELHI AT NEW DELHI
MUKTA GUPTA, J.
VIKAS KUMAR - Appellant
Vs.
STATE - Respondent
CRL.A.1000/2013
Decided On : 18-05-2016
For the Appellant : Mr. Anwesh Madhukar, Adv. DHCLSC.
For the Respondent: Mr. Ravi Nayak, APP for State.
The main legal point established in the judgment is that in cases of kidnapping, it is essential to prove enticement and moral persuasion, and the absence of these elements can lead to the acquittal of the accused.
Headnote:
Kidnapping - Enticement - Sections 363, 366 IPC - AIR 1965 SC 942, AIR 1973 SC 2313
Fact of the Case:
The appellant was convicted for offences under Sections 363 and 366 IPC for allegedly kidnapping a minor girl. The prosecution alleged that the appellant enticed the girl away from her lawful guardian. The appellant challenged the conviction, arguing that the essential ingredients of enticement and allurement were not proved, and there were contradictions in the statements of the prosecutrix.
Finding of the Court:
The court found that the prosecutrix was a minor at the time of the incident, but there was no evidence of enticement or moral persuasion by the appellant. The court concluded that the prosecution failed to prove the ingredients of kidnapping, and acquitted the appellant of the charges under Sections 363 and 366 IPC.
Issues: The main issue was whether the appellant had enticed the minor girl away from her lawful guardian, and whether the prosecution had proved the essential ingredients of kidnapping.
Ratio Decidendi: The court relied on the legal principles established in the cases of AIR 1965 SC 942 and AIR 1973 SC 2313, which emphasized the importance of proving enticement and moral persuasion in cases of kidnapping. The court held that the prosecutrix voluntarily went with the appellant and there was no evidence of enticement or moral persuasion, leading to the acquittal of the appellant.
Final Decision: The impugned judgment of conviction and order on sentence were set aside, and the appellant was acquitted of the charges. The appellant was ordered to be released from custody.
MUKTA GUPTA, J.
1. By the instant appeal the appellant Vikas Kumar challenges the impugned judgment dated 28th February, 2013 whereby he has been convicted for the offences punishable under Sections 363/366 IPC and the order on sentence dated 8th March, 2013 directing him to undergo Rigorous Imprisonment for a period of four years for the offence punishable under Section 363 IPC along with a fine of Rs.3,000/-, and in default of payment of fine to undergo Simple Imprisonment for a period of three months and Rigorous Imprisonment for seven years for the offence punishable under Section 366 IPC with a fine of Rs. 5,000/- in default of which he shall undergo Simple Imprisonment for a period of six months.
2. The brief facts of the prosecution case are that on 21st May, 2012 at 4.05 PM the complainant informed that her granddaughter aged 14½ years resident of House No.623, K-Block, Jahangir Puri, height 5 ft, fair complexion, round face, slim body, wearing cream colour top and black pant, whose upper front teeth was broken, was missing from her house since 4.00 A.M. She has been enticed by some unknown person and taken to some unknown place. On the basis of this statement, FIR under Section 363 IPC was registered at PS Jahangir Puri and investigation was handed over to SI Balwant Singh, PW-10 who transmitted messages (Ex.PW-10/A) to all SSPs of India and all SHOs of Delhi. During investigation, he came to know that the prosecutrix and the accused were in District Muzaffarpur, Bihar. SI Balwant Singh along with HC Netra Pal PW4 reached PS Shakra, District Muzaffarpur, Bihar on 29th May, 2012 along with Deepa PW-7 mausi of the prosecutrix. Vikas was arrested on 29th May, 2012. Both of them were identified by Deepa. Statements of prosecutrix, Deepa and Head-constable Netra Pal were recorded. Prosecutrix and Vikas were taken for medical examination to Dr. Krishna Singh, PW-8. In the medical examination, no external and internal injuries were found on the body including private parts of the prosecutrix. On a transit custody remand, Vikas was brought to Delhi.
3. Statement of the prosecutrix was recorded under Section 164 Cr.P.C by learned Metropolitan MagistratePW-9 vide Ex.PW9/A. An enquiry regarding age of Vikas was conducted and he was found to be aged between 20-22 years vide Ex.PW-10/E. After the investigation, Vikas faced trial for offences punishable under Sections 363 and 366 IPC.
4. Learned counsel for the appellant contends that the learned Trial Court failed to appreciate the contradictions in the statement of prosecutrix recorded under Section 164 Cr.P.C. and her deposition in the court. She had categorically stated that it was not the appellant who enticed her to go with him rather it was the prosecutrix who called the appellant and insisted him to take her to his native village. Learned Trial Court also failed to appreciate that the essential ingredients of enticement and allurement by appellant have not been proved by the prosecution. The prosecutrix herself consistently stated that she was not lured by the Appellant. Learned counsel further contends that the age of prosecutrix has been ascertained in a routine and mechanical manner. He further states that there are material contradictions as regard to the date of adoption of prosecutrix in the statements of PW-7, PW-5 and PW- 6 and the real mother of the prosecutrix has not been examined as a witness.
5. Learned APP for the State on the other hand contends that the prosecutrix herself stated that she was below 18 years of age and thus a minor at the time of the offence. Therefore her consent is immaterial. There is no error in the impugned judgment of conviction and order on sentence.
6. The Supreme Court in the decision reported as AIR 1965 SC 942 S. Varadarajan Vs. State of Madras held that taking or enticing away minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping and where no inference can be drawn on the facts o
