High Court · 2012

f the provisions of Section 428 CrPC. 2. The case of the prosecution, as emerged at the trial, may, in brief, be described thus: On 20.12.2003, at about 9:00 A.M., when PW6, daughter of PW1 and PW5 of village Solmari, was proceeding to her school, the accused forcibly put her on a bicycle and took her to Katuakata gaon and left her there at the house of the Gaonbura (village headman) of the said village. As PW6 did not return ho me, her parents became worried and they searched for her, but, having not found her, PW1 (father of PW6) lodged a written Ejahar at Moirabari Police Station on 21.12.2003. Treating the said Ejahar as First Information Report (in short, ’FI R’), Moirabari Police Station case No. 222/03, under Section 366/34 IPC, was reg istered. During the course of investigation, PW6 was recovered by the police fr om the house of the said Gaonbura, she was medically examined, her statement, un der Section 164 CrPC, was recorded, the accused was arrested and, in course of t ime, the police, on completion of investigation, laid charge-sheet against the a ccused under Section 366 IPC. 3. the accused, he pleaded not guilty thereto. 4. In support of their case, prosecution examined altogether 8 (eight) witn esses. The accused was, then, examined under Section 313 CrPC and, in his examin ations aforementioned, he denied that he had committed the offence, which was al leged to have committed by him, the case of the defence being that of denial. N o evidence was adduced by the defence. 5. Having, however, found the accused guilty of the offence, which he stood charged with, learned trial Court convicted him accordingly and passed sentence against him, as mentioned above. During trial, when a charge, under Section 366A IPC, was framed against I have heard Mr. C. Phukan, learned amicus curiae, and Mr. D. Das, learn

6. ed Additional Public Prosecutor, Assam. While considering the present appeal, what needs to be borne in mind is 7. that since the accused stands convicted under Section 366A IPC, it was imperativ e, on the part of the prosecution, to adduce sufficient evidence proving convinc ingly that PW6, the alleged victim, was a minor on the day of the alleged occurr ence. 8. With regard to the above, it may be noted that PW1, who is father of PW 6 and also informant of the case, has deposed, in his evidence, given in the exa mination-in-chief, that his daughter, PW6, was, at the time of the occurrence, 1 4/15 years old. In his cross-examination by the defence, PW1 candidly admitted that he had mentioned the age of PW6 as 14/15 years at the time of the alleged o ccurrence on the basis of his assumption. Considered in this light, the learned amicus curiae is correct in submitting that the evidence of PW1 could not have been held to have proved that his daughter (PW6) was 14/15 years old, or was a m inor, at the relevant point of time. What is, however, important to note is that PW5, who is mother of the al 9. leged victim (PW6), has deposed, as regards the age of PW6, that PW6 was aged ab out 14 years at the time of the occurrence. This assertion of PW5 went wholly u nchallenged by the defence. 10. Being mother of PW6, when PW5 deposed that her daughter (PW6) was 14 yea rs old and this assertion was not denied, there was no reason for the learned tr ial Court not to agree with the evidence of PW5 that her evidence proved that PW 6 was 14 years old at the time of the occurrence. This apart, the doctor (PW7), who had examined PW6, has opined that her age was 16/17 years. Though this opi nion of the doctor, as a medical expert, is not only advisory in nature, the mar gin of error can be to the extent of 2 years. Viewed from this angle, PW6 could have been, in the light of the medical evidence on record, 14/15 years old or a s high as 18/19 years old. In view, however, of the uncontroverted evidence, given by PW5 (i.e., th 11. e mother of PW6), that PW6 was, at the time of the occurrence, aged about 14 yea rs, the medical opinion also closely corroborates the evidence, so given by the mother of PW6, and there is, therefore, no reason for the Court to disbelieve PW 5. 12. Situated thus, there can be no escape from the conclusion that PW6 was a minor at the time of the alleged occurrence.

13. On turning to the evidence of PW6, what I notice is that she has deposed that on the day of the occurrence, while she was going to her school, the accus ed forcibly put her on a bicycle and took her to the house of the Gaonbura of Ka tuakata village. It is noteworthy that the distance between Katuakata village ( where PW6 was allegedly kept by the accused) and Solmara village (i.e., the plac e from where PW6 was allegedly taken by the accused forcibly on bicycle) is, adm ittedly, about 6 (six) kilometers. The learned amicus curiae is, therefore, is correct in contending that had PW6 been forcibly taken on bicycle, she would hav e been noticed by people to be struggling to free herself, when she was being ta ken to the house of the said Gaonbura, at Katuakata village. This apart, there is nothing, in the evidence of PW6, that she raised hue and cry, when the accuse d allegedly put her forcibly on a bicycle and took her to the house of the said Gaonbura. It is also not in the evidence of PW6 that she was, in any manner, th reatened or intimidated, or put in fear of injury by the accused-petitioner. In the situation, as indicated above, it becomes abundantly clear that P 14. W6 went willingly with the accused to the house of the said Gaonbura and that wa s the reason why she had not raised any alarm, when she was allegedly put on a b icycle by the accused and took to the house of the said Gaonbura. 15. Considering, however, the fact that PW6 has been proved to be a minor at the time of the occurrence, the act of her being taken by the accused, to the h ouse of the said Gaonbura, from out of the custody of her parents amounted to th e offence of kidnapping from her lawful guardianship, as defined by Section 361 IPC, and the said act of the accused-appellant was punishable by Section 363 IPC . 16. Because of the fact that there is not even an iota of evidence, on recor d, indicating or reflecting that PW6 had been taken to the house of the said Gao nbura for the purpose of subjecting her to sexual intercourse, the learned amicu s curiae is justified in contending that ingredients of Section 366A IPC were wh olly absent and in the face of the facts of the case at hand, the accused-appell ant could not have been convicted under Section 366A IPC. 17. Coupled with the above, the evidence, given by PW1, father of PW6, and t he evidence of the Investigating Officer (PW8) clearly shows that PW6 was recove red from the house of the Gaonbura of Katuakata village. Thus, the evidence of PW6 stands substantially corroborated by the evidence of her father and the Inve stigating Officer. This apart, nothing has been elicited from the cross-examina tion of PW6 to show that her evidence ? that she was taken by the accused, on a bicycle, to the house of the Gaonbura of Katuakata village, when she was on her way to her school ? is untrue or false. Situated thus, the conclusion, which is irresistible, is that PW6 was, indeed, taken, on a bicycle, by the accused-appe llant to the house of the said Gaonbura. Because of the fact that the evidence on record proves that PW6 was a mi 18. nor at the time, when the accused, as described above, took her to the house of the said Gaonbura and thereby took her away from the lawful guardianship of her parents, the accused is liable for conviction for committing the offence of kidn apping, which is punishable under Section 363 IPC. What becomes clear from the discussion held above is that the accused-ap 19. pellant has been illegally convicted under Section 366A IPC; rather, he ought to have been convicted for an offence under Section 363 IPC. The conviction of th e accused-appellant, under Section 366A IPC, cannot, therefore, be sustained and must be interfered with.

20. In the result and for the reasons discussed above, this appeal partly su cceeds. While the conviction of the accused-appellant, under Section 366A, by t he impugned judgement and order is hereby set aside, the accused-appellant is he reby convicted under Section 363 IPC. 21. Coming to the sentence, which needs to be passed in consequence of the c onviction of the accused-appellant under Section 363 IPC, it may be noted that t he alleged occurrence took place almost about nine years ago and, hence, in the facts and circumstances of the present case, this Court is of the view that rigo rous imprisonment for a period of 6 (six) months with fine of Rs. 1,000/- would be adequate punishment and would serve the ends of justice.

22. This Court, therefore, sentences the accused-appellant to suffer rigorou s imprisonment for a period of 6 (months) and pay a fine of Rs. 1,000/- and, in default of payment of fine, to suffer rigorous imprisonment for a period of 2 (t wo) months. 23. Since the accused-appellant is on bail, he is hereby directed to surrend er, forthwith, in the Court of the learned Chief Judicial Magistrate, Morigaon, in order to serve out the sentence of imprisonment, which has been passed agains t him. 24. osed of. 25. uable assistance rendered to this Court. 26. Let the learned Amicus Curiae be passed a sum of Rs. 5,000/- for his val With the above observations and directions, this appeal shall stand disp Send back the LCR.