Criminal Appeal (SJ) No. 858 of 2006 -------- Against the judgment and order of conviction and sentence dated 24.8.2006 passed by Shri Bipin Bihari Shrivastava, Additional District and Sessions Judge, FTC – 4, Purnea in Sessions Case no. 483 of 2004/Tr. No. 61 of 2004. -------- Pankaj Kumar Mishra alias Jitan Mishra alias Pankaj Kumar, son of Sri Lok Nath ishra, resident of – Gadhwaligan (Bandarbari), Police station – Gohupur, O.P. – Dhaigaon, District – Sonitpur (Asam) ……………. Appellant Versus The State of Bihar ……………. Respondent ----------- For the Appellant : Sarvshri Jagdish Prasad Bhagat & D.N. Tiwari, Advocates For the State : Shri S.N. Prasad, A P P ---------- P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA -------- Dharnidhar Jha, J. The appellant was convicted of the offence under section 366A IPC by the learned Presiding Officer, Fast Track Court No. 4, Purnea in Sessions Trial no. 483 of 2004 by the judgment delivered on 24.8.2006 and was directed to suffer RI for ten years and also to pay a fine of rupees ten thousand else, to suffer RI for two years. The appellant appeals against the judgment of conviction and sentence passed upon him. 2. The daughter of P.W. 2 was found missing from her house and she suspected that it could be this appellant, who was residing in the next house of the neighbourhood, who could have 2 either taken or enticed her away. P.W. 2 filed her report. Besides, she informed her husband, who was also examined by the trial court as P.W. 1, who came and a search was made. 3. On report being lodged, the police registered the case on the basis of the written report (Ext. 1). The police registered the case and it is said that she was recovered from the paternal house of the appellant from village. The victim died during the pendency of the trial and she was not examined as a witness. 4. Her parents have stated that the victim went missing and probably it was this appellant who had taken or enticed her away because the victim was recovered from the company of the present appellant. The evidence on recovery comes from the Investigating Officer SI Siril Kumar, who was examined as P.W. 6. On these evidences, the court below convicted the appellant. 5. Kidnapping is of two types – one is taking away from India and the other is taking away a minor from lawful guardianship. When it comes to taking away from the lawful guardianship, the elements of taking away or enticing away has to be there, which necessarily means that either the lady should be duped or made to believe a particular fact and then should be moved from her lawful guardianship or she be lifted forcibly or may be moved out of her lawful guardianship. In the first instance, there is complete lack of evidence on the trial record that this appellant had either taken the victim away or had enticed her away from her lawful guardianship. Whatever is found by reading the evidence of P.Ws. 1 and 2, the 3 parents of the lady, is that they were merely suspecting that the lady had either been taken away or enticed away by the present appellant. P.Ws 1 and 2 were jumping to a conclusion without there being any material evidence to justify those conclusions. In fact, if the lower court could have considered the evidence in its proper perspective, it could have found the latches of the doors of the house both at the entry of the campus as also the room in which the lady was sleeping in that particular night unbolted from inside. This could have been done only when the lady had done it. This could also be indicative of the fact that the lady had herself come out of the room and moved further out of the premises of her parental house to probably go into the company of the appellant. As a result, she was found residing in her ancestral house. 6. Section 366 IPC envisages taking away or enticing away a lady aged up to 18 years with certain purpose. There is complete lack of evidence as to what could be the purpose of the appellant for taking the lady away, whether she was taken away or enticed away with an intent to subject her to sexual intercourse or to give her to any person for being subjected to that act or she was to be solicited for sexual intercourse. 7. I have already indicated that there is a complete lack of evidence on taking away or enticing away of the victim. The learned trail judge appears having pondered over the difficult situation the evidence had posed against him. But, he was taking a route of the escapist because he was writing down in his judgment that if the 4 situation of uncertainty was presented by the evidence, then it was better for him to convict the appellant by accepting the prosecution evidence. It was completely an unknown approach to appreciate the evidence. If there could be two views possible on appreciation of evidence, then the law is well settled that the view which could be favourable to the accused has to be taken. I again want to reiterate that the evidence was such which could lead to any inference, may be that the lady had been taken away or probably she had herself transgressed the limits of her house to go out of her paternal house of her own free will. Again there is complete lack of evidence showing intent of the appellant. The facts of the case could never have constituted an offence under section 366A IPC or for that matter any offence for which the appellant could have been convicted. 8. In the result, I find merit in the appeal and allow the same by setting aside the judgment of conviction and sentence. If the appellant still continues to be lodged in prison, he shall be released forthwith if not wanted in any other case. (Dharnidhar Jha, J.) Patna High Court, The 5th August, 2011, NAFR/Anil/