1. Heard Mr. N Hassan, learned Amicus Curiae appearing for the appellant and Mr. BJ Dutta, learned Addl. Public Prosecutor, Assam.
2. This appeal is directed against the judgment and order dated 30.03.2010 passed by the Deputy Commissioner, Karbi Anglong functioning as learned
Sessions Judge, Karbi Anglong in Sessions Case No.33/97, whereby the appellant was convicted under section 363 IPC and sentenced to
imprisonment for 3 (three) years and fine of Rs.2,000/- with default stipulation.
3. As per the allegation made in the FIR, the daughter of the informant who was aged about 13 years at the relevant time was kidnapped by the
present appellant from the house of her (informant’s) sister. An FIR was lodged by the mother of the victim on the basis of which, Diphu PS Case
No.149/1997 was registered under section 366(A) IPC. During the course of investigation, the alleged victim was recovered from the house of the
present appellant and on conclusion of investigation charge-sheet was laid against the appellant under section 366(A) IPC.
4. During the course of trial, learned Deputy Commissioner cum Sessions Judge framed charges against the appellant under section 366(A) IPC, to
which they pleaded not guilty. Six witnesses were examined by the prosecution in order to bring home the charges and on appreciation of evidence,
learned Sessions Judge convicted the appellant under section 363 IPC and awarded sentence as indicated above.
5. Aggrieved the appellant preferred the instant appeal.
6. I have considered the submissions made by the learned Amicus Curiae as well as learned Addl. PP and scrutinised the evidence brought on record.
7. On perusal of the record, it appears that neither the victim nor her mother, the first informant was examined in this case. As per the allegation made
in the FIR, the victim was kidnapped from the house of Sheela Mazumder, sister of the informant, who has been examined as Pw-2.
8. Pw-2 Sheela Mazumder deposed in her evidence that at the time of occurrence, she was pregnant and therefore, the victim being her niece
(daughter of elder sister) was brought to her house to take care of her (Pw-2). On the day of occurrence, the victim was found missing from the
house and later on, they came to know that the present appellant has abducted the victim and accordingly, they went to the house of the appellant, but
the appellant refused to hand over the victim to them and thereafter, police was informed by lodging the FIR and police recovered the victim from the
house of the present appellant.
9. Uttam Mazumder, the husband of Sheela Mazumder has been examined as Pw-3, who testified that the victim was the niece of his wife, who was
aged about 13-14 years at the time of the occurrence and was staying in his house to support his wife who was at the advanced stage. According to
him, at the time of occurrence he was not available in the house and has gone to Guwahati. On his return from Guwahati, he came to know that the
victim was missing. He further stated that having come to know that the victim was in the house of the appellant he sent Bijoy Das (Pw-1) to bring
the victim back, however, the accused/appellant refused to send her back and therefore, FIR was lodged and eventually the police recovered the
victim from the house of the appellant.
10. Pw-1 Bijoy Das testified that the victim was missing from the house of Pw-2 & Pw-3 and later on, they came to know that the victim was in the
custody of the present appellant. He further stated that when they went to the house of the appellant to bring back the victim, he refused to release
her and thereafter the FIR was lodged.
11. Pw-4 & Pw-6 were the Investigating Officers who investigated the case and submitted charge-sheet.
12. Pw-5 Dr. Ruplal Nunisa who examined the victim opined that the victim was above 16 years and below 17 years. He further opined that there
was no sign of penetration found in the private parts of the victim.
13. Evidently, there was no direct evidence regarding kidnapping of the victim, inasmuch as, the victim has not been examined in the instant case, even
the informant, the mother of the victim was also not examined. Apparently, the FIR was lodged on 01.06.1997 after 13 (thirteen) days of the
occurrence. It is in the evidence of Pw-2 & Pw-3 that the victim, who happens to be their niece was brought to their house to help Pw-2 who was in
her advanced stage. It is also in the evidence of Pw-1, Pw-2 & Pw-3 that they were aware, that the victim was in the house of the appellant and they
tried to bring her back but the accused allegedly did not allow her to come back. Surprisingly, even having come to know that the victim was with the
accused immediately after she went missing and accused prevented the victim to leave his house, no FIR was lodged for 12 days. Even in the FIR no
explanation has been given for the twelve days in lodging the FIR. True it is, delay in lodging the FIR per se is not fatal, what is fatal is absence of
satisfactory explanation. It also may not be necessary, that the explanation must be given in the FIR itself. Explanation may even be inferred or
discernible from the materials on record. However, in the present case no explanation has been given nor any explanation is discernible. Rather, in the
facts and circumstances of the case as indicated above inordinate delay in lodging the FIR raises a doubt about the varsity of the prosecution version.
14. The offence of kidnapping as defined in Section 361 IPC is as under:
361. Kidnapping from lawful guardianship.â€"Whoever takes or entices any minor under 1[sixteen] years of age if a male, or under
2[eighteen] years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of
unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
15. As per the definition of the offence of kidnapping under section 361 IPC, in order to convict a person under section 363 IPC, the prosecution is
required to prove firstly that the victim has been a minor girl of below 18 years of age or a boy below 16 years and secondly, he/she had been enticed
or taken away by the appellant, thirdly the taking or enticing has been made out of the keeping of the lawful or de facto guardian without consent of
such guardian.
16. Apparently the victim was not examined and there was also no direct evidence to show that the appellant had enticed or taken away the victim by
any deceitful means. Only evidence brought on record is that after the victim gone missing she was found in the house of the appellant. It must be
borne in mind that in a criminal trial to convict a person each and every ingredient of the offence is required to be proved beyond reasonable doubt. If
it is found that the victim voluntarily accompanied the accused without any inducement or force such act of the victim voluntarily accompanying the
accused shall not come within the purview of “enticing†or taking unless there is element of force or deceitful inducement. In the present case,
evidently there is no evidence on record to show that the accused enticed or took away the victim. Therefore, in my considered opinion the vital
ingredient to constitute the offence under section 361 Cr.P.C., is absent.
17. Another aspect of the matter is that though, the age of the victim has been stated to be 13-14 years by Pw-2 & Pw-3, there was no other
evidence except the medical opinion as to the age, inasmuch as the informant or the mother of the victim has not been examined. According to Pw-5,
the doctor, her age was in between 16-17 years which transpires that the victim was a grown up girl at the time of occurrence and if the error of two
years is taken into consideration, the age of the victim may be 18 years or above. This being the position, the prosecution evidence is also not
conclusive to establish that the victim was below 18 years at the relevant time.
18. Having taken into consideration the evidence in its entirety, more particularly the absence of conclusive evidence as to the age of the victim to
prove that she was below 18 years at the time of occurrence, absence of any satisfactory explanation for an inordinate delay of 12 days in lodging the
FIR as well as absence of any evidence to show that victim was enticed or taken by the accused, and the facts and circumstances as indicated above,
I am of the view that the prosecution evidence was grossly inadequate to establish a charge under section 363 IPC against the appellant or at least the
appellant is entitled to benefit of doubt and as such, the conviction under section 363 IPC is not sustainable. Accordingly, the conviction and sentence
of the appellant under section 363 IPC is hereby set-aside and the appeal stands allowed.
19. Appreciating the assistance rendered by Mr. N Hassan, learned Amicus Curiae, it is provided that he will be entitled to professional fees of
Rs.7000/-. Upon production of a copy of this judgment Guwahati High Court Legal Services Committee shall pay the fee to Mr. Hassan.
20. Send down the LCR along with a copy of this judgment.
