Crl.A. 326/2003 BEFORE THE HON’BLE MR. JUSTICE U.B.SAHA 1. The instant appeal is directed against the judgment dated 16.9.2003 pass ed by the learned Sessions Judge, Sivsagar in Sessions Case No. 76 (S-S)/2002 wh ereby and whereunder the appellant herein was convicted under Section 363 of the IPC and sentenced him to suffer R.I for two years and also to pay a fine of Rs. 1000/- i.d. to undergo further R.I for two months. 2. Heard Mr. P. Bora, learned Counsel for the appellant as well as Mr. B.S. Sinha, learned Addl. P.P appearing for the State respondents. 3. The prosecution case in short is as follows: One Smt. Mai Das, (P.W. 1), the mother of the victim girl, (P.W. 2), lod ged a complaint on 27.4.2002 with the Gourisagar P.S. alleging, inter alia, t hat her daughter was taken away by the accused appellant with an intention to marry her forcibly. 4. Upon receipt of the said complaint, Gourisagar P.S. registered a police case being No. 33 of 2002 under Section 366A IPC. 5. The case was investigated by one ASI of the aforesaid police station who , while investigating the case, visited the place of occurrence and prepared the sketch map and also recorded the statement of the witnesses including the frien ds of the victim girl. Ultimately, on 4.5.2002, the accused appellant produced t he victim girl at the Gourisagar police station where they were interrogated. On disclosure of the victim girl, the I.O also went to the house of witness Smt. K alpana Das (P.W 8) and seized the school uniform of the victim girl from her hou se. The victim girl was also medically examined by P.W 6, Dr. Tayabur Rahaman. H er statement was also recorded under Section 164 Cr. P.C. Thereafter, on comple tion of investigation, the police filed the charge sheet under Section 366A IPC. 6. Since the case was exclusively triable by the Court of Sessions, the ca se was committed to the Court of Sessions Judge by the learned SDJM, (sadar), Si vsagar. 7. The learned Sessions Judge, upon hearing the parties, framed the charge against the accused appellant under Section 366A IPC and explained the same to h im in his own language to which he pleaded not guilty and wanted to be tried. 8. In order to bring home the charge of offence of kidnapping, the prosecut ion examined as many as nine witnesses including the official witnesses. 9. P.W. 1, Smt. Mai Das is the mother of the victim girl, P.W 2 is the vict im girl herself, P.W 3 Smt. Jyoti Das is the elder sister of the victim girl, P. W 4, Sri Bakul Das is the tempo driver in whose vehicle the victim girl was take n away, P.W 5 Sri Manindra Das is the uncle of the accused appellant and a po lice constable, P.W. 6 Mr. T. Rahman is the doctor who examined the victim for determination of her age, P.W 7 Miss Aruna Das is a colleague of the victim gir l, P.W 8 Smt. Kalpana Das is a witness in whose house the victim girl was taken for some time and P.W 9 is the I.O of the case. 10. Upon examination of the prosecution witnesses as stated supra, the learn ed trial Court examined the accused under Section 313 Cr. P.C. wherein the ac cused admitted that the victim girl might be of 17 years old at the time of all eged kidnapping. He also admitted that the victim girl was a student of Class-VI I and she herself voluntarily went with him. He did not kidnap the victim girl. 11. After hearing the parties and on considering the evidences of the prosec ution witnesses, the learned Sessions Judge passed the impugned order of convict ion and sentence as stated supra which is under challenge in the instant appeal. 12. Mr. Bora learned Counsel for the appellant while urging for setting asid e the order of conviction and sentence and acquitting the accused appellant from the charge levelled against him, would contend that this is not a case of norma l kidnapping of an innocent minor girl by a minor boy or a kidnapper. From the e vidence of the prosecution witnesses, it would be evident that this is a case of love between teenagers. Consequent thereto, the girl left with a boy, the accus ed appellant herein, voluntarily as that would be evident from the love letters (Exhibit-A and B) written by the victim girl to the accused appellant. 13. He further contended that though the prosecution, particularly, the I.O. of the case (P.W 9) in his statement stated that he recorded the statement of s ome girl students of the school in which the victim girl was studying at the rel evant time, but none of those witnesses were produced and examined by the prosec ution, except P.W 7 Ms. Aruna Das, a student of Gourisagar High School. However, she was declared hostile by the prosecution, as she did not support the case of the prosecution. 14. He further submits that from the evidence of P.W 5 and P.W 8, it would a lso be evident that even after the alleged kidnapping, the victim girl was in no rmal position. She even did not cry when she was forcibly taken away by the accu sed appellant and from the normal behaviour of the victim girl, it may be presum ed that she was a consenting party in the incident. 15. He further submits that even if this Court considers that this is a case of 363 IPC and the conviction has to be upheld, then also the order of sentence passed by the learned trial Court needs to be modified being the offence was co mmitted at the teenage of the appellant without knowing the consequence of the o ffence. 16. He again submits that though P.W 4 in his statement specifically stated that in his vehicle there are some other girls except the victim girl, then also the prosecution did not produce those girls for proving the case of alleged kid napping. 17. Mr.B. S. Sinha, learned Addl. P.P submits, inter alia, that after proper survey of the evidence of the prosecution witnesses, it cannot be said that the prosecution has established its case beyond reasonable doubt, though admittedly the prosecution has proved that at the time of alleged offence, the victim girl was below 17 years and even if she gave consent, such consent has no value in t he eye of law being she was a minor girl. 18. It appears from the impugned judgment that the learned Trial Court after considering the evidences on record came to the conclusion that the prosecutio n failed to prove a case under Section 366A IPC for which the charge was framed by the learned Sessions Judge, but obviously a case is made out under Section 36 3 IPC. 19. It further appears from paragraph-17 of the impugned judgment that the m edical report does not speak about any sexual molestation of the victim girl and there was also no injury on the private part of the victim girl. The victim gir l was also silent to say that she was pressurized by the accused appellant to ma rry him. Other witnesses are also silent to say so. 20. Before going to any conclusion, it would be proper to reproduce the sal ient portion of the evidence of P.W 1, the informant, mother of the victim girl , P.W 2, the victim girl, P.W. 4 the auto driver, P.W 6, 7 and 8. Accordingly th e same are reproduced hereunder: 21. P.W 1, the mother of the victim girl, in his deposition stated that at t he relevant time, her daughter was a student of class-VIII and she was only 12 y ears old. She went to school, but did not return home. Two colleague students of her daughter came to her and reported that her daughter was taken away in a tem po by a boy by using force. After six days, her daughter was handed over to the police by the family members of the accused. She was told by her daughter that t he name of the accused is Ramesh Das. In cross her examination, she stated that her daughter had plucked as many as four times in the school. She also stated th at she did not say the I.O that two colleague students of her daughter came to her and reported that one boy had forcibly taken away her daughter. She also c ould not say if her any affairs with the accused from before. To Court, she fur ther stated that her daughter had attained puberty only two years ago. 22. P.W. 2, the victim girl stated in her deposition that she was held by t he accused and boarded her in a tempo and taken to a family, not known to her. A fter 4/5 days the accused and other persons brought her to Gourisagar police sta tion where her mother also came and took her back. At the relevant time, she was 12 years old and she attained puberty two years back. In her cross examination, she stated that she had no affairs with the accused. She changed her uniform in the house where she was taken first. She denied about writing lover letters (Ex bt. A & B) to the accused. She also stated that she did not shout for help in th e tempo because she became perplexed. 23. P.W. 4 is the tempo driver who in his deposition stated that the victim girl was not known to him. The accused boarded her vikram tempo at Gourisagar st and. Few girl students also boarded her tempo near the High School, but he could not complete her journey due to puncture of the tyre of the tempo. 24. P.W 6 is the doctor who examined the victim girl. In his deposition, he stated that the age of the victim girl was below 18 years at the relevant time and he found no injury around breasts or any other parts of her body and also around genetalia and inside vagina. He also stated that he found no evidence of sexual intercourse. 25. P.W 7 is a colleague students of the victim girl. She in her deposition stated that she and victim girl were returning home together from school, but s ince her house was to other direction, they got separated from the main road. Sh e knows the accused. On the next morning, the mother of the victim girl came to her to know the whereabouts of the victim girl to which she told she had no know ledge. In her cross, she told that she did not state to the I.O that she and the victim girl was waiting for bus outside the school and then a tempo came and st opped near the victim girl and the accused took her in the said tempo towards Si vasagar. She also told that she was not suppressing the truth being influenced b y the accused. 26. P.W 8 Smti. Kalpana Das is a witness in whose house the accused took the victim girl first. She in her deposition stated that she knows the accused sinc e the date of incident. The accused was known to her husband as both of them wer e doing business at Bhutiapar market. She also stated that oneday the accused ca me to her house with a girl who appeared to be 16/17 years old wearing school un iform. When she asked, the accused disclosed his identity and after staying for half an hour, they left her house when the victim girl changed her clothes. Afte r about a week, the police came for investigation accompanied by the accused, vi ctim girl and her mother when the I.O seized the clothes from her. In her cross examination, she stated that the girl was found normal and she was not under str ess or pressure. 27. On scrutiny of the evidence, it appears that the accused appellant himse lf produced the victim girl in the police station and thereafter the victim girl was placed before the Judicial Magistrate, 1st Class and her statement was reco rded, but the said Judicial Magistrate was not produced and examined by the pros ecution to prove the 164 statement though the same was exhibited as Exhibit 2. 28. Upon going through the record, particularly, Exbt. A and B, it cannot be ruled out that there was a love affairs between the victim girl and the accused appellant. From Exbt. A and B, it also appears that the victim girl herself app roached the appellant that she has fallen in love with the appellant. More so, when the victim girl was allegedly taken by the appellant from the school gate while she was moving to her home, she did not even raise her voice to rescue her or to detain the appellant which shows that the victim girl was also an intend ing party to the offence, but being she was a minor, her consent has no value i n the eye of law and being the appellant was an adult, this Court is of consider ed opinion that even if for argument sake, it is admitted that the victim girl had fallen on love with the appellant, he should not have taken the girl withou t the consent of her local guardian i.e. the parents. 29. Therefore, according to this Court, order of conviction passed by the le arned Trial Court does not require any interference, but so far the order of sen tence is concerned, after taking the facts and circumstances, particularly, the age of the appellant at the time of commission of offence and the Exhibit A and B, the letters written by the victim girl, this Court is of considered opinion t hat the modification of sentence is called for. 30. As it is stated at the Bar that the appellant was in custody for three m onths two days as an under-trial prisoner and at present he is on bail and offen ce was committed in the year 2002 and the instant appeal was preferred in 2003, it would not be proper for this Court to send him again in jail. Thus, the sente nce is modified to the extent he has already undergone as an under trial prisone r. 31. The appellant is at present on bail. His bail bond stands discharged. 32. The appeal is partly allowed to the extent indicated above.