SAXENA, J. - (1.) THIS petition filed u/s. 482 Cr. P. C. has been directed against the order dt. 6. 10. 93 passed by the learned Addl. Sessions Judge No. 2, Sri Ganganager, whereby he held that there was sufficient ground to frame charge against the petitioner for the offences u/ss. 363 and 305 IPC.
(2.) BRIEFLY the relvant facts for the disposal of this petition are that on 19. 7. 92, complainant Ramprakash lodged a written report before the S. H. O. , P. S. Kotwali Srigangagar, wherein it was alleged that on the night intervening 16th & 17. 07. 1992, he alongwith his daughter Deepa aged 14 years and son Shyam Sunder were sleeping in the courtyard of his house situated in M. P. Nagar, Bikaner; that on the next day at about 6 A. M. , he did not find his daughter Deepa. He, therefore, made frantic search for her; that he asked his neighbour Sukhdeo Singh, whose nephew petitioner Gurjeet Singh was also found missing. He further alleged that he alongwith Sukhdeo Singh contacted petitioner's friend Bunti Barad, who told them that petitioner was with him on 16. 6. 92 till about 11. 30 p. m. and, thereafter, he went away and that he did not know about his whereabouts. In the report, it was also alleged that the complainant alongwith Sukhdeo Singh and Bunti made a search for Deepa and Gurjeet Singh at Lalgarh Rilway Station & Bus Stand, Bikaner, village Rawla, 36 B. B. , Padampur, Ganganagar & Bhatinda. Thereafter, Shyam Sunder, Bunti & two others were sent to Madras to contact petitioner's another friend Hanuman Singh Rajpurohit, but there too, petitioner and Deepa were not found. Those persons also went to Lucknow on 27. 6. 92 and further searched them in Malot, Abohar etc. , but Deepa and Gurjeet could not be traced. The complainant further mentioned in his report that he wanted to lodge the FIR much earlier because he apprehended that the petitioner had kidnapped and adbucted Deepa, but Sukhdeo Singh assured him that Deepa would be brought back soon and prevailed upon him not to lodge the FIR in order to save the reputation of both families. On 10. 7. 92, Sukhdeo Singh informed him that the petitioner was reported to have visited the house of his 'mausi' in the town of Tibi and that he had already sent Jaswant Singh, Uttam Singh and Munshi Singh there. On the same day at about 4. 15 P. M. , the complainant received a telephonic message of his son-in-law, Vikram Sehgal informing him that Deepa was admitted in the Ganganagar Hospital, where she breathed her last. The complainant, therefore, rushed to Sri Ganganagar, where his son Sanjeev told him that on 10. 7. 92, Deepa had come to his house and her condition was serious and she was vomiting and that she had told him that petitioner Gurjeet Singh had administered her two tablets and that thereafter, she became unconscious and later-on died in the hospital. It appears that the Medical Jurist, Govt, Hospital, Srigangariagar vide his letter dt. 10. 7. 92 informed the S. H. O. , P. S. Kotwali Ganganagar that Kumari Deepa aged 16 years was brought to the outdoor patient Department at 2. 40 P. M. ; that she was declared dead at 3. 05 P. M. on the same day and that it was a case of celphos poisoning. Thereupon, proceedings u/s. 174 Cr. P. C. were initiated. The doctor, who conducted her post mortem did not find any external injury on her body, but found that her membranes, pleurae, both the lungs, liver, spleen & kidneys were congested. However her other visceras were healthy. The doctor preserved her visceras for being sent to the F. S. L. The doctor reserved his opinion about the cause of death till the receipt of the chemical examination report of the visceras. The dead body of Deepa was handed-over to her brother Sanjeev Kumar on 10. 7. 92 and on the same day, her dead body was cremated. The complainant, thereafter, submitted the written report dated 19. 7. 92, whereupon a case u/ss. 302, 364 and 376 IPC was registered. The police after investigation submitted the challan against the petitioner for the offences u/ss. 306,363 and 364 IPC in the court of CJM, Sri Ganganagar, who committed the case to the court of learned Addl. Sessions Judge. The learned trial Judge after perusing the record of the case and challan papers and hearing the submissions of the accused and the prosecution by his impugned order found that there was sufficient ground for presuming that the accused has committed offences punishable u/ss. 363 and 305 IPC and ordered for framing charge against the petitioner. Hence this petition. I have heard Mr. R. G. Purohit, learned counsel for the petitioner, Mr. S. M. Singhvi the learned P. P. and Mr. Sandeep Mehta, the learned counsel for the complainant at length and perused the record of the learned lower Court as also the challan papers in extenso. Mr. Purohit strenuously contends that from the F. S. L. report, it is clear that on chemical examination, the visceras taken from the body of Kumari Deepa gave negative test for metallic poisons, ethyl and methyl alcohol, chloral hydrate cyanide, alkaloids, barbiturates and insecticides. Therefore, the cause of death was not poisoning and that the Medical Jurist's opinion dt. 28. 9. 92 to the effect that her death might have been caused due to poisoning is against the record and, as such, no offence u/s. 305 IPC is made out against the petitioner. He further contends that there is not a fringe of evidence to prima facie show that the petitioner had taken or enticed Kumari Deepa out of the keeping of her lawful guardian; that a bare perusal of letter dt. l7. 05. 1992 alleged to have been written by deceased Deepa and recovered from the possession of the petitioner also reflects that she was a sentimental girl and was bent upon to put an end to her life. According to him, the basic ingredients for the offence enumerated in Sec. 361 IPC are missing in this case and, as such, the learned Addl. Sessions Judge has not considered the said letter and other evidence collected by the I. O. and thus not applied his mind judicially and committed an illegality in holding that there was sufficient ground to believe that the petitioner has committed offences punishable u/ss. 363 and 305 IPC. Shri Purohit also points out that in this case, the FIR has been inordinately delayed and that there is no legal evidence to show that Deepa was a minor. On the other hand, Mr. S. M. Singhvi learned P. P. and Mr. Sandeep Mehta, learned counsel for the complainant reiterate the reasoning given by the learned trial Judge.
(3.) I have bestowed my thoughtful consideration to the rival submissions. The essential ingredients for the offence of kidnapping from lawful guardianship punishable u/s. 363 IPC, are (1) taking or enticing away a minor or person of an unsound mind (2) such minor, if female, must be under 18 years of age (3) taking or enticing must be out of the keeping of the lawful guardianship of such minor and (4) that such taking or enticing must be without the consent of such guardian. For the offence punishable u/s. 305 IPC, the basic ingredients are that there must be commission of suicide by a person; that the person, who committed suicide should be under 18 years of age or insane or an idiot or intoxicated and that the accused abetted the commission of suicide. In the case on hand, complainant Ramprakash, who is the father of deceased Deepa, in his report has mentioned that her age was 14 years. The Medical Jurist in the post mortem examination report has mentioned the age of Deepa as 16 years, whereas in the attested photostat copy of the marksheet of Kumari Deepa of Secondary School Examination, 1992, her date of birth is 25. 7. 77. Therefore, there is sufficient evidence, which prima facie shows that at the time of alleged occurrence, her age was 14 years, 11 months and one day and in any case, she was a minor. During investigation, it has transpired that petitioner Gurjeet Singh had taken Kumari Deepa to Haridwar, where they stayed in number of hotels from 18. 6. 92 to 8. 7. 92. Ram dhan, Kamlendra Prasad, Satish Bhatt, Devendra Prasad, Mayank Sharma, Sachendra Jha & Ratan Kumar, who are the Managers/waiters for various hotels of Haridwar, have identified the petitioner as also the photograph of Kumari Deepa and have stated in their statements u/s. 161 Cr. P. C. that they had stayed in their hotels from 18. 6. 92 to 8. 7. 92 under different names. Kumari Deepa and the petitioner disappeared from their house on the same day. As per police statement of Laxman Das, on 10. 7. 92, he had seen the petitioner Gurjeet Singh alighting Kumari Deepa from a jeep near the house of her brother Sanjeev Kumar in Ganga Nagar. Nandlal and Kamal Bahadur have stated that they had seen Kumari Deepa going to the house of Sanjeev Kumar on 10. 7. 92. Ram Prakash has stated that the petitioner had taken away & kidnapped Kumari Deepa without his consent. Therefore, at this stage, there exist reasonable, valid and sufficient grounds to believe that the petitioner had taken or enticed Kumari Deepa, a minor, from the lawful custody of her father without latter's consent. Suffice it to say that kidnapping is a continuing offence. As per statements of Laxman Das, Nand Lal and Kamal Bahadur on 10. 7. 92, the petitioner had left Kumari Deepa near the house of her brother Sanjeev Kumar situated in Ganganagar. The death of Deepa also took place in Ganga Nagar. Therefore, prima facie, offence u/s. 363 IPC appears to have been made out against the petitioner and that the learned trial Judge has the jurisdiction to try the petitioner. Hence, in my considered opinion, the learned Sessions Judge has not committed any illegality in framing the charge for the offence u/s. 363 IPC against the petitioner. As regards the offence u/s. 305 IPC, the evidence collected by the Investigating Officer does not disclose the cause of death of Kumari Deepa. In the first instance, the Medical Jurist after conducting the post mortem examination, reserved his opinion regarding the cause of death till the receipt of chemical examination report of the visceras. The FSL report dt. 25. 7. 92 is emphatically clear to the effect that the chemical examination of the visceras gave negative test for metallic poisons, ethyl and methyl alcohol, chloral, hydrate, cyanide, alkaloids, barbiturates and insecticides. The Medical Jurist after the receipt of F. S. L. report has given his opinion on 28. 9. 92 that Kumari Deepa died due to asphyxia. He has stated that such symptoms are also available in poisoning cases and that it was possible that Deepa might have died due to poisoning. Evidently, this opinion is clearly against the contents of F. S. L. report. Hence even prima facie, the exact cause of Deepa's death is not known. There is not a fringe of evidence to show that the petitioner had administered some poisonous substance to Deepa or abetted her to take some poisonous substance and to commit suicide. Therefore, there do not exist sufficient and reasonable ground to believe that the petitioner had abetted Deepa to commit suicide. ;