Facts Of The Case
The case pertains to the challenge against the appeal to the judgment dated 06.01.2010, passed by the learned Additional Sessions Judge (F.T.C.) No. 3, Kamrup, Guwahati, in Sessions Case No. 343 (K) of 2008. By the impugned judgment, the learned Court below convicted the appellant under Section 366 A of the Indian Penal Code and awarded imprisonment for a period of 3 years along with a fine of Rs. 10,000/- and in default of payment of fine, rigorous imprisonment for another period of 6 months.
The prosecution against the appellant revolved around the age of the girl which was stated to be 14 years as her birth certificate discloses her date of birth to be 02.11.2001. The father of the victim girl had lodged the complaint alleging that on 11.01.2006, the appellant had kidnapped his minor daughter. During the period of investigation, the victim girl gave her statement under Section 164 of the Cr.P.C. She had admitted before the Magistrate that she was in love with the appellant for a long time. Further, she also stated that pursuant to her love affair with the appellant, she herself had gone with the appellant and married him. On completion of the investigation, the police filed the charge-sheet against the appellant under Section 366A of the Indian Penal Code. Accordingly, the learned Trial Court also framed the charge under Section 366A of the Indian Penal code.
Issues before the Court
The only point for the determination of trial is as to whether the appellant induced the minor girl under the age of eighteen years to go from any place or to do any act with the intent that such girl maybe, or knowing that it is likely that she will be, forced or seduced to do illicit intercourse with another person. She disclosed that pursuant to her love affair with him, she had gone with the appellant on her own.
The accused did not plead guilty before the learned Trial Court and accordingly, the trial proceeded. As many as 6 witnesses were examined by the prosecution. The defence plea was total denial and the appellant examined one witness. Thereafter, on the basis of the evidence on record, the learned Trial court arrived at the impugned finding, who examined the victim girl at the time of police investigation. It appears that the Trial Court insinuated that if her parents had agreed then she would have the right to choose her life partner. Section 359 of the Indian Penal Code has laid down that kidnapping is of two grounds, viz, (i) kidnapping from India and (ii) kidnapping from lawful guardianship.
Reading Section 366A of the Indian Penal Code, it is clear that whoever procures a minor girl for some other person than only he can be held guilty under this Section. If he kidnaps a woman for him, then he shall be guilty under Section 366 of the Indian Penal Code. According to Section 366 of the Code, the age is immaterial. So, the learned Trial Court has erroneously framed the charge under Section 366A and also erroneously convicted under Section 366A of the Indian Penal Code. In this case, the victim has stated that she went with the appellant on her own. There is no cross-examination on that point and therefore, it is clear that she was a consenting party to the act of the appellant. Taking or enticing away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping. Thus, the Court held that the impugned judgment as not sustainable. The offence against the accused-appellant had not been proven beyond all reasonable doubt and accordingly, the impugned judgment dated 06.01.2010, passed by the learned Additional Sessions Judge was set aside. The appellant was acquitted from this case.
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