Judgment · High Court · 2012

On 10.11.2002, Sri Nagen Deka lodged an ejahar stating therein that on 7 .11.2002 at about 6.30 p.m., his daughter Miss Swapna Deka, aged about 15 years was kidnapped by accused Pranab Sarma. On the basis of which, a case was registe red by the police and investigation was launched. On completion of the investiga tion, charge sheet was submitted alleging commission of offence under Section 36 6(A)/376 IPC.

#3. During trial, the learned trial Court framed formal charges under Secti on 366/376 IPC against the accused appellant. On reading over and explaining the charge afore noted, the accused appellant pleaded not guilty and claimed to be tried.

#4. During trial, the prosecution examined as many as fifteen (15) witnesses including the doctor, who had examined the victim and the Investigating Officer . On completion of the recording of the prosecution evidence, the defence statem ent of the accused-appellant was recorded in terms of the provision of Section 3 13 CrPC. The accused took the stand of total denial of the charge. On completion of the hearing, the learned trial Court convicted the accu 5. sed appellant under Section 366/417 IPC and sentenced him as aforesaid, giving r ise to this appeal.

#6. I have heard the submissions advanced by Mr. P. Upadhyay, learned counse l appearing for the appellant and Mr. B.B. Gogoi, learned Addl. P.P. appearing f or the State of Assam.

#7. Mr. P. Upadhyay, learned counsel appearing for the appellant submitted t hat the facts stated by the prosecution witness do not constitute an offence und er Section 366 IPC and at the most, the accused may have committed an offence of cheating under Section 417 IPC and for which he has been convicted and sentence d to pay a fine of Rs.10,000/- which the accused had already paid.

#8. In order to appreciate the arguments advanced by the learned counsel for the appellant as well as the prosecution, I would like to examine the core of t he prosecution evidence.

#9. The most vital evidence in support of the prosecution case is the deposi tion of prosecutrix i.e. PW-2 the victim of the occurrence. In her statement, sh e (PW-2) has categorically stated that on the date of occurrence, she was at the site of Bashudev Mandir, from where at the instance of the accused, she accompa nied him. The accused repeatedly proposed her by saying (cid:28)I love you (cid:29) (cid:28)I will mar ry you (cid:29) (cid:28)I will take you home forcibly (cid:29). According to PW-2, she was taken forcib ly with him and when it was night, they took shelter at the residence of Binita Deka (PW-3). PW-2, the victim further stated that the accused appellant had sexu al intercourse with her. Binita Deka (PW-3) in her deposition stated that when s he saw the victim sitting in one of the rooms of her house alone, she asked her as to why she had come at their residence at night. In reply to that, she told h er that she was taken by Pranab Sarma. PW-3 also stated that Binita Deka stayed at their residence for two night and one day. However, on the next day, when the uncle of the victim came to the residence of Binita Deka, the victim refused to go with them and told them that as she loved appellant, she would go with him. However, PW-3 was declared hostile by the prosecution. In her cross examination by the defence, PW-3 denied to have stated before the police that the victim had told her about the accused committing sexual intercourse with the victim. PW-4, Kunjalata Deka corroborated the testimony of PW-3 to assert that the victim had come to the residence of Binita Deka only to get married with the appellant on being assured by him. In her cross examination, PW-2, the victim specifically st ated that she came with the accused on the assurance of getting married. From th e evidence of other witnesses, it clearly transpires that the victim came out on her own on the assurance of the marriage by the accused.

#10. Learned counsel for the appellant referring to the evidence of the docto r regarding the age of the victim submitted that opinion of the doctor as to the age of a person upon Radiological test, the margin of error in age is two (2) y ears on either side. The doctor who was examined the victim both clinically and radiological and opined that the age of the victim is above 17 years but below 1 8 years. The father of the victim also in his cross examination clearly stated t hat the age of his daughter at the relevant of the occurrence may be 18 years.

#11. Learned counsel for the appellant has relied on the decision of the Supr eme Court reported in AIR 1982 SC 1297 (Jaya Mala Vs. Home Secretary, Government of J. and K. and others), wherein, it was held - Growing in age day by day is an involuntary process and the anatomical changes i n the structure of the body continuously occur. Even on normal calculation, if s even months are deducted from the approximate age opined by the expert, in Oct., 1981 detenu was around 17 years of age, consequently the statement made in the petition turns out to be wholly true. However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological exam ination is two years on either side. Undoubtedly, therefore, the detenu was a yo ung school going boy. It equally appears that there was some upheaval in the edu cational institutions. From the above analysis, it can be concluded that the victim was above 1 8 years of age. In order to attract the offence under Section 366 IPC, the following ess

#12. ential ingredients are required to be established by the prosecution - (i) (ii) (i) e will be compelled to marry any person against her will; or in order that she may be forced or seduced to illicit intercourse, or kn (ii) owing it to be likely that she will be forced or seduced to illicit intercourse, Kidnapping or abducting of any woman; Such kidnapping or abducting must be - with intent that she may be compelled or knowing it to be likely that sh (iii) by means of criminal intimidation or otherwise by inducing any woman to go from any place with intent that she may be, or knowing that she will be, forc ed or seduced to illicit intercourse. It is immaterial whether the woman kidnapped is a married woman or not. To bring home an offence under Section 366 IPC, the prosecution is to prove (a) that the accused kidnapped as understood in Section 360 or 361 IPC or abducted the victim as understood in Section 362 IPC (b) that the victim of the aforesaid kidnapping or abduction was a female (c) that the accused during the kidnapping or abduction had intention or knew it likely that (1) such woman might or would be forced to marry a person against her will, or (2) that she might or would be forced or seduced to illicit intercourse, or (3) by means of criminal intimidat ion or otherwise by inducing a woman to go from any place with intent that she m ay be or knowing that she will be forced or seduced to illicit intercourse. (cid:29) 13. Learned counsel for the appellant submitted that prosecutrix never put u p any struggle or raised any alarm while being taken by the accused. Therefore, the prosecutrix has to be deemed to be willing party. In support of his contenti on, he relied on the decision of the Supreme Court reported in 1995 CRI.L.J. 397 4 (Shyam and another Vs. State of Maharashtra), wherein, it has been held as fol lows - (cid:28)In her statement in Court, the prosecutrix has put blame on the appellants. She has deposed that she was threatened right from the beginning when being kidnapp ed and she was kept under threat till the police ultimately recovered her. Norma lly, her statement in that regard would be difficult to dislodge, but having reg ard to her conduct, as also the manner of the so-called (cid:28)taking (cid:29), it does not se em that the prosecutrix on her visit to a common tap, catering to many, would b e found alone, or that her whereabouts would be under check by both the appellan ts/accused and that they would emerge at the scene abruptly to commit the offenc e of kidnapping by (cid:28)taking (cid:29) her out of the lawful guardianship of her mother. Se condly, it is difficult to believe that to the strata of society to which the pa rties belong, they would have gone unnoticed while proceeding to the house of th at other. The prosecutrix cannot be said to have been tied to the bicycle as if a load while sitting on the carrier thereof. She could have easily jumped off. S he was a fully grown up girl may be one who had yet not touched 18 years of age, but still she was in the age of discretion, sensible and aware of the intention of the accused-Shyam, that he was taking her away for a purpose. It was not unk nown to her with whom she was going in view of his earlier proposal. It was expe cted of her then to jump down from the bicycle, or put up a struggle and, in any case, raise an alarm to protect herself. No, such stepswere taken by her. It se ems she was a willing party to go with Shyam, the appellant on her own and in th at sense there was no ’taking out of the guardianship of her mother. The culpabi lity of neither Shyam. A-1 nor that of Suresh. A-2, in these circumstances, appe ars to us established. The charge against the appellants/accused under Section 3 66 IPC would thus fail. Accordingly, the appellants deserve acquittal. The appea l is, therefore, allowed acquitting the appellants.

#14. On careful analysis of entire gamut of facts, I find that the victim a t the time of occurrence would be above 18 years of age. The victim voluntarily went away with the accused-appellant. On the top of it, she was well above the a ge of giving valid consent to go with the accused from her legal guardianship. C onsequently, the offence of kidnapping under Section 366 IPC is not attracted ag ainst the accused-appellant. However, facts remains that the accused-appellant c ommitted sexual intercourse with the victim woman with a promise to marry, but h e subsequently broke the promise thereby the offender has committed an offence u nder Section 417 CrPC. Further, when a woman permitted the accused to have sex, it cannot be said that she was rapped, however, as the accused enticed her to ha ve sex under false promise to marry, he is liable to be convicted for cheating. Relying on the above proposition, the accused was rightly convicted under Sectio n 417 CrPC.

#15. However, from the facts and circumstances discussed above, I find that t he ingredients of offence under Section 366 IPC are missing in this case and the prosecution side has failed to prove the charge under aforesaid section of law beyond all reasonable doubt. Consequently, the accused is acquitted of charges u nder Section 366 IPC. However, the conviction of the accused under Section 417 I PC is maintained.

#16. In the result, the appeal is partly allowed in above terms.

#17. nt. Send back the lower Court records immediately with a copy of this judgme