Judgment:
Murari Prasad Shrivastava, J.
The present appeal is directed against the order of conviction and sentence dated 22.09.2008 passed by the learned Additional Sessions Judge, Fast Track-2nd Court, Malda, in Sessions Case No.68 of 2006 whereby the appellant was sentenced to suffer Rigorous Imprisonment for 7 (Seven) years with a fine of Rs. 2,000/- (Two thousand) in default to suffer Simple Imprisonment for 15 (Fifteen) days for the offence punishable under Section 363 of the Indian Penal Code.
The prosecution case, in brief, is that on 08.05.2005 one Nirmal Besra found that his minor daughter Latika Besra aged below 16 years was missing from his house. On enquiry he came to learn that the present accused/appellant had kidnapped her with the intention of marrying her. A missing diary was lodged at the P.S. and a village “salish” was held in presence of the respected persons including guardian of the accused on 18.5.2005 and in spite of an assurance by the said guardian of the accused, victim girl was not returned, whereupon Nirmal Besra lodged a written complaint on 19.5.2005 with the local P.S.. On the basis of the said F.I.R, Bamangola P.S. Case No. 47 of 2005 was started and investigated. After completion of investigation, charge sheet under Section 363/366/376 I.P.C was filed against the accused. The charges were duly framed against the accused who pleaded not guilty and claimed to be tried.
In all 14 witnesses were examined on behalf of the prosecution. The F.I.R, Salishnama, Seizure lists, School certificate, the relevant entry in the School admission register, sketch map and other documents were admitted in evidence on behalf of the prosecution and marked as Exbts. The defence did not adduce any evidence and its plea was simply one of innocence.
The learned Trial Court upon consideration of the evidence and materials on record found the accused not guilty of the offences under Sections 366/ 376 I.P.C, but, held that the accused had committed an offence under Section 363 I.P.C and accordingly convicted and sentenced him to suffer Rigorous Imprisonment for 7 years with a fine of Rs. 2000/- in default to suffer another 15 days Simple Imprisonment.
The appellant has preferred the present appeal challenging the sustainability of the judgment mainly on the following grounds:
(a) That the learned Court failed to appreciate the evidence in its proper and correct perspective.
(b) That the learned Court did not consider the failure of the investigating agency to conduct ossification test of the victim girl for ascertaining her age properly.
(c) That the learned Court though acquitting the accused/appellant in respect of the charge under Section 366/376 I.P.C wrongly held the appellant to be guilty of the alleged offence under Section 363 I.P.C.
(d) That the judgement being otherwise bad in law, is not sustainable.
P.W.1. Nirmal Besra, is the father of the victim girl Latika Besra, who is P.W.2. P.Ws 3, 5 and 13 are the local villagers who have deposed about a “Salish” being held at the village while P.Ws. 4 and 6, also being co-villagers, have been declared hostile by the prosecution. P.Ws 7 and 8, the lady home guard and constable respectively are the seizure witnesses. P.W.9 is the doctor who conducted the medical examination of the victim girl. P.W.12 is the medical officer who held the medical examination of the accused to ascertain his sexual capability. P.W.10 is the officer-in-charge of the Bamongola P.S who received the F.I.R on 19.05.2005 at 4.05 P.M and started the case. P.W.11 is the teacher-in-charge of the school where the victim girl was a student and P.W.14 is the I.O..
Mr. Partha Sarathi Bhattacharyya, learned Advocate appearing for the appellant at the outset submits that there are no sufficient materials on record to prove the date of birth of the victim girl and in order to sustain a charge of kidnapping, it is essential that the female has to be under 18 years of age. He further submits that the investigating officer should have gone for an ossification test of the victim girl to ascertain her age properly and that the School Certificate produced is not conclusive proof of age. Though I agree with the submissions of learned Advocate for the appellant that Ext 6, the School Certificate which mentioned the date of birth of the victim girl as 20.2.1992, is not conclusive proof, but prosecution has produced the admission register of the students of the school and the relevant entry relating to the P.W.2, victim girl Latika Besra has been marked Ext. 7/1. Though it is true as mentioned in the said admission register, which has been proved by P.W.11 the teacher-incharge of Habibpur Samu Hemram High School, that such entry in respect of the date of birth was made upon the P.W.2, victim girl, having obtained admission in the said school upon transfer from Galtola Secondary school but the same cannot be discarded, just because the Transfer Certificate has not been produced. P.W.11 has proved the entry in the said school admission register as regards the date of birth of the victim girl, Latika Besra being recorded as 20.02.1992 and in his cross-examination has clearly stated that the date of birth was 20.02.1992 according to the register. On consideration of the entire evidence and materials on record I hold that the learned Trial Court correctly held that Latika Besra was a minor girl under 16 years of age on the date of occurrence.
Mr. Bhattacharyya, learned Advocate for the appellant now points out to the delay in lodging the F.I.R and submits that such delay has not been properly explained. However, P.W.1 the de facto complainant has clearly stated in his evidence that after he found that his daughter was missing from his house, he called the villagers and there was a village meeting over the issue. The F.I.R (ext.1) also clearly reveals that in the said village “Salish”, the guardian of the accused was also present and had assured that the daughter of the P.W.1 would be sent back. Only when such assurance was not complied with, P.W.1 was forced to lodge the written complaint on 19.05.2005. Accordingly, in my opinion the delay has been sufficiently explained.
Mr. Bhattacharyya, learned Advocate for the appellant now refers to the evidence of the P.W.14 (I.O) and submits that the victim girl had stated to the I.O that she had love affairs with the accused since childhood and the parents did not accept the same and further that because of the deep love they had for each other she did not get pleasure upon not meeting the accused. According to Mr. Bhattacharyya though P.W.2 has denied stating the same, but in her cross-examination she has clearly deposed that she cannot recollect whether she stated to the Police that the accused took her away forcibly. Even if it be considered that the accused took away the victim girl with her consent, the provisions of Section 361 I.P.C clearly specify that, any person taking away or enticing any minor girl out of the keeping of the lawful guardian of such minor without consent of such guardian, such person is said to kidnap such minor from lawful guardianship. It is not the case of the appellant that the lawful guardian of the victim girl, being P.W.1 her father in the present case, had given consent to the taking away of his daughter by the accused. P.W.14 has clearly deposed that he had arrested the present accused/appellant along with the victim girl at village Salgaon, Tapan (South Dinajpur) on 21.5.2005. So, it is quite evident that since 08.05.2005 the accused had with him the victim girl who was being moved from place to place, as clearly deposed by P.W.2. Learned Advocate for the appellant refers to the evidence of P.Ws 4 and 6 and submits that the “Salishnama” has been manufactured subsequently and no credence should be placed on the same. Even if such argument is accepted the fact remains that the accused/appellant had taken away the minor daughter of the de facto complainant without his consent.
In view of the discussion above and having regard to the evidence and materials on record I find no force in this appeal and it should be accordingly dismissed. However, considering the age of the accused as well as other relevant factors and further that the accused is in custody since 22.09.2008, I am of the opinion that the sentence should be reduced by way of modification to the effect that instead of suffering Rigorous Imprisonment for 7 (Seven) years it would be justified if the appellant is sentenced to suffer Rigorous Imprisonment for 4 (Four) years and also to pay fine of Rs. 2,000/- (Two thousand) in default to suffer Simple Imprisonment for 15 (Fifteen) days.
The appeal therefore fails. The order of sentence however is modified to the extent that the appellant who is guilty of the offence punishable under Section 363 I.P.C shall suffer Rigorous Imprisonment for 4 (Four) years and also pay fine of Rs. 2,000/- (Two thousand) in default to suffer Simple Imprisonment for 15 (Fifteen) days.
Let a copy of this judgment along with the Lower Court Records be sent to the learned Court below for information and necessary action.
Urgent Photostat certified copy, if applied for, be handed over to the parties as early as possible.