Tripura High Court Emphasises that Kidnapping Alone Cannot Constitute an Offence Under Section 366 of IPC

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In the case of Shri Sujit Datta vs the State of Tripura 2018, the division bench consisting of Hon’ble Justice S Talapatra and Hon’ble Justice S.G Chattopadhayay dealt with an appeal under Section 374(2) of the CrPC from conviction by Asst Sessions Judge for an offence under Sec 366 of IPC.

Facts

A complaint was filed by one Sanjit Singh that his daughter aged 13 years was missing as she did not return home at the expected time. After a rigorous search by the parents, it was found that the daughter had not reached the tuition centre either. Later in the day, Sanjit’s wife received a phone call from her daughter telling that she had been kidnapped by the appellant who had threatened to kidnap the girl a few days before the incident. Following the complaint, the investigation was carried out and based on the evidence the trial court held the appellant guilty under Sec 366 IPC. An appeal has been filed before the High Court against the conviction.

Arguments Advanced

The counsel for the appellant submitted that there is no relevant evidence to prove the offence under Sec 366 IPC, nothing on record shows that the appellant tried to do any illicit act with the girl while she was in custody and there is no legal proof that the victim was forced by the appellant to marry. The counsel further relied on the decision of the Supreme Court in Chote Lal and Anr vs. the State of Haryana reported in 1979, wherein it was stated that finding of abduction alone is not sufficient for conviction under Sec 366 IPC, it is necessary to prove that the abduction was for the purpose mentioned in the section. Further, the counsel also argued to negate abduction on the ground that the victim had not shown any resistance and was a willing party. The case of Shyam and Anr vs. the State of Maharashtra reported in 1995 was relied on, where it was held that in absence of evidence that the victim put up a struggle or raised alarm, she could be treated as a willing party.

The prosecution counsel, opposing the arguments by the defence, submitted that the victim has clearly stated that she did not cry for help out of fear, as she was threatened to be killed if she resisted the kidnap. Further during the investigation, conch bangle, pallar and vermillion had been seized and were seen to be worn by the victim. It was stated by the mother that the victim has stated to her that the appellant put the vermillion on her head and forced her to wear the conch bangle.

Court’s Observations and Conclusion

Court perused the evidence on record and observed that the evidence regarding putting the vermillion on the victim’s forehead is difficult to believe because such an incident was not stated to the police or magistrate but was added at the stage of the trial. No evidence shows that at the recovery of the victim, there was vermillion on her forehead and hence seems like an improved version. In connection to the offence of kidnapping, the evidence proves the same, however, kidnapping alone cannot satisfy the essentials under Sec 366 IPC. Court cited the case Kuldeep K. Mahato vs the State Of Bihar reported in 1988, which stated that if evidence does not show the intention of the accused to marry her against her will or force her to illicit intercourse, a conviction under Sec 366 IPC cannot be sustained.

Court held that the evidence does not prove the essentials of Sec 366 IPC and hence such conviction is set aside, however, the offence is punishable under Sec 363 IPC and, hence, the appellant is convicted under the said section. The appeal stood partly allowed.


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