Crl.A. 90/2006 BEFORE HON’BLE MR JUSTICE P.K.MUSAHARY Heard Mr. F.H.Laskar, learned counsel appearing for the accused/appellants in Cr iminal Appeal No.90/2006. Heard also Mr. S.Bhattacharjee, learned counsel appear ing for the accused/appellant in Criminal Appeal No.77/2006. Heard also Mrs. A. Begum, learned Additional Public Prosecutor, Assam. 2 The above appeals are directed against the judgment and order dated 31.3. 06 passed by the learned Additional Adhoc Sessions Judge, Karimganj. In Criminal Appeal No.90/06, appellants, Sri Raja Ghosh @ Khona and Sri Santosh Das @ Naray an Das were convicted under Section 366 read with Section 109 IPC and sentenced to undergo rigorous imprisonment for 5 years and a fine of Rs. 5000/- in default to suffer additional 6 months simple imprisonment. In Criminal Appeal No.77/200 6, the appellant Smti Rani Bala Paul was convicted under Section 306 read with S ection 109 IPC and sentenced to undergo rigorous imprisonment for 5 years and a fine of Rs. 1000/- and in default to suffer additional 6 months imprisonment. Si nce the above appeals are against the common judgment and order, these appeals a re taken up together for hearing and disposal. 3 The prosecution case is based on the written FIR lodged by PW 3 , wherein it is stated that on 09.01.2003 at about 9 a.m. when the victim girl, Smti. Maumita Banerjee @ Sanu, minor daughter of the informant was returning hom e from private tutor’s house, the accused Sri Raja Ghosh with the help of his fa ther, mother, elder brother and another person kidnapped her. On receipt of the FIR, the police registered a case and after investigation submitted charge sheet against the accused, Shri Raja Ghosh, @ Alok, Smti. Rani Bala Paul, Sri Narayan Das@ Santosh Das and Sri Mithu Paul under Section 143/366A IPC. The case agains t Sri Mithu Paul was dropped on the police report that he had expired. 4. The case was committed to the Court of the Session for trial aga inst 4 accused persons. On the basis of the materials on record charge was fram ed under Section 366/366 A/109 IPC against the accused persons, who on being rea d over and explained pleaded not guilty and claimed to be tried. The prosecution examined in all 5 witnesses while the defence examined none. On appreciation o f evidence and materials on record, the learned trial court convicted and senten ced the accused persons as stated earlier. 5. Since the charge has been framed under Section 366A IPC, it is f irst necessary to find out whether the victim girl was minor on the date of occ urrence. As per the FIR filed by the informant-father the victim was a minor gir l . He maintained the same statement before the learned trial court at the time of making his deposition. The informant -father of the victim was examined as PW 3. The victim girl who was examined as PW 1 in her deposition before the trial court stated that she was aged about 15 years. The Medical Officer, PW 2, state d that he examined the victim girl and after perusing the X-ray report and loo king at the physical appearance, he opined that the age of the victim girl woul d be below 16 years but in the cross examination he stated that the X-ray was n ot conducted in the Government Hospital and he did not know where and how the X -ray was taken. It appears that the Medical Officer offered his opinion on the b asis of the ossification test report which is not final. The age of the victim g irl could be ascertained on the basis of other available evidence. For this purp ose, I would refer to the evidence of PW 1, the victim girl ,who in her cross e xamination, amongst other stated that she was reading in Class X on the date o f occurrence. If it is so, she was about 16 years or little above. In the cross examination she also stated that she got plucked twice and if 2 years is added, it is obvious that she crossed the age of 18 years at the time of occurrence. 6. Admittedly, the prosecution did not produce and exhibit any cert ificate like School Certificate or Birth Certificate issued by the concerned au thorities to prove the victim’s age. In absence of such documents, the court has to determine the age of the victim girl on other informations and here we have found that she was 16 years at the time of occurrence and she got plucked twice in her academic career and from this it can be reasonably concluded that she wa s above 18 years. Once the age of the victim girl is found above 18 years at the time of occurrence, the charge under Section 366A IPC would not be applicable t o the accused persons, particularly, the accused Sri Raja Ghosh. In view of the above, the order of the learned trial court discharging the appellant Sri Raja G hosh stands upheld. 7. Coming to the charge under Section 366 IPC, it is necessary to d iscuss and appreciate the evidence on record how and under what circumstances th e victim girl accompanied the accused/appellant, particularly, accused Raja Ghos h. From the evidence of the prosecution witnesses it is found that the victim gi rl attended tuition on the date of occurrence and she was looking for rickshaw t o return home. The victim, PW 1, herself stated in her evidence that a rickshaw puller came to pick up and drop her home. According to her , in fact, the rickshaw puller told her that the said rickshaw was sent from her house to tak e her home and accordingly she boarded the said rickshaw. She was taken to the house of accused Rani Bala Paul, appellant in Criminal Appeal No. 77 of 2006. Th e accused persons were already present in Rani Bala’s house and one of them w ent out to call for a vehicle/taxi. When the Taxi (Maruti Van) was brought to Ra ni Bala’s house accompanied by two other male members , the victim girl boarded the vehicle at around 3 p.m. and moved towards Agartala via Manu. From Agartala the accused Sri Raja Ghosh and the victim girl flew away to Kolkata. Thereafte r they returned to Guwahati by flight and on reaching Guwahati they left for Jo rhat by night super bus. Both accused Raja Ghosh and the victim girl stayed few days in the house of the relatives of Raja Ghosh. The police recovered the vict im girl from the house of Raja’s relative. In her evidence the victim girl di d not make even a whisper that she was forced to accompany the accused appellant , Raja Ghosh to Agartala and to Kolkata and Jorhat via Guwahati. She has never stated that she was put under threat while she was taken from one place to an other by the accused/appellant Sri Raja Ghosh. 8. To establish the charge of kidnapping, abduction etc within the meaning of section 366 IPC, there must be evidence to prove that the victim girl was kidnapped or abducted with intention to compel her to marry against her wil l or may be forced or seduced to illicit intercourse . The victim girl in the pr esent case never stated in her deposition that she was forcefully kidnapped or abducted by the appellants with some illicit intention, which is the essential ingredient of offence under Section 366 IPC. It may be noted that both the main accused person and the victim girl and other accused persons belong to same loc ality and they know each other. Even the Taxi driver, PW 4 who drove the vehicl e carrying the victim girl and other accused persons to Agartala , made no state ment to the effect that the victim girl, through out the journey, made any cry f or help or protest or tried to stop the vehicle on way protesting the alleged k idnapping or abduction. The behaviour and conduct of the victim girl is importan t to establish the charge that she was forcefully taken away or kidnapped by som e body. As the victim girl was at the age of consent being above the age of 16 y ears, was capable of understanding the intention of the perpetrator after undert aking a long journey from Karimganj town to Agartala. A major girl like the vict im could have raised halla or cried for help at any opportune moment during jo urney in the vehicle. Such attempt was not made by the victim girl at any point of time. Not only that she flew with the main accused to Kolkata and boarding th e plane at Agartala Air Port. She had opportunity to resist or complain to sec urity personnel on duty. She got the similar opportunity while she landed at Ko lkata and returned from Kolkata by flight to Guwahati. She again travelled to Jorhat by bus accompanying the main accused person. These are the circumstances under which the court can easily come to a conclusion that she was voluntarily a ccompanying the main accused Raja Ghosh and moving with him from place to place more than a week. It is beyond any body’s understanding that when a girl is forc ibly taken out from the custody of the parents could accompany a male partner wi thout any objection or resistance during the entire journey from Karimgaj to Aga rtala and then to Kolkata and Jorhat via Guwahati. 9. The prosecution never made an attempt to prove a case of forcibl e kidnapping or abduction. In such a case of abduction, kidnapping etc, it is t he evidence of the victim girl which should be given prime importance and weight because it is the victim who knows the best about her suffering and bitter exp erience. Had she not accompanied the main accused Raja with her free will and mind, she would have surely deposed before the court the truth. The truth is tha t nothing sort of abduction or kidnapping against her will took place. This cou rt would not have spared the main accused, have there been any evidence adduced by her that she was forcibly taken away, kidnapped or abducted. There is one th ing to note that a major girl would not have dared or agreed to visit a distant place like Kolkata unless she was confident enough that the person with whom s he was visiting the said place is reliable for her. 10. Regarding ill intention , it should be stated that the Medical O fficer, PW 2 who examined the victim girl on police requisition recorded the fin dings in the medical report Ext.2. The Medical Officer said that there is no si gn of violence on her person. Even her hymen was found intact. Pregnancy test w as also found negative. The said Medical Officer affirmed the said medical repor t by his oral evidence and proving the said report. This report along with the evidence of PW 2 testified that there was no sign of sexual intercourse or vio lence on the victim girl. This being the position, no ill intention could be att ributed to the main accused appellant. 11. I do not think it necessary to further appreciate the evidence o f other prosecution witnesses. The prosecution has failed to prove the charge un der Section 366 IPC against the main accused person and I am afraid that he coul d be convicted under the aforesaid charge. The charge having not been proved bey ond any reasonable doubt, not to speak of beyond all reasonable doubt, the conv iction and sentence as recorded by the learned trial court is not sustainable un der the law. 12. As regards the other accused Rani Bala Paul and Sri Santosh Das @ Narayan Das, it may be said that if the voluntariness of the victim girl in accompanying and moving for the days together with the main accused/appellant is brought on record and proved in my considered view, the charge under Section 366/109 cannot be brought against them. Moreover, there is no evidence to the e ffect that these two accused appellants accompanied the victim girl and the main convict appellant Raja Ghosh to Agartala and other places and they abetted him in any manner. 13. In view of the above, all the accused appellants are entitled to acquittal. The impugned judgment and order dated 31.3.2006 convicting and sen tencing the appellants are liable to be set aside and quashed. It is accordingly set aside and quashed. Appeals succeed. Convict appellants stand acquitted. It is stated at the Bar that the convict appellants are on bail and no order for r elease is required to be passed. 14. The bail bond stands discharged. Send down the LCR forthwith.