Criminal Appeal (SJ) No. 1028 of 2006 ------------- Against the judgment and order of conviction and sentence dated 15.11.2006 and 16.11.2006 passed by Shri Adya Sharan Choudhary, Additional Sessions Judge, Fast Track Court No. – 4, Banka in Sessions Case no. 156 of 2004 /Trial No. 89 of 2006. ----------- Amrendra alias Arbind Paswan, son of late Budhan Paswan, resident of village – Kathoun, Police station – Rajoun, District –Banka ……….. Appellant Versus The State of Bihar ………….. Respondent ---------- For the Appellant : Shri Om Prakash Pandey, Advocate Amicus Curiae For the State : Shri Ajay Mishra, A P P --------- P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA --------- Dharnidhar Jha, J. The solitary appellant Amrendra alias Arbind Paswan was put on trial by the Fast Track Court No. 4, Banka by charging him under sections 366A and 376/34 IPC. By judgment dated the 15th day of November, 2006, the appellant was held guilty of committing offences under sections 366 and 376 IPC and was directed to suffer RI for ten years as also to pay a fine of rupees ten thousand on each of the two counts; sentences being directed to run concurrently. In case of fine being realized, half of the total fine being credited to the prosecutrix whereas half was directed to be paid to the informant. The appellant questions the order of conviction and 2 sentence passed upon him by the learned trial judge by preferring the present appeal. 2. For an occurrence dated 11.5.2003, a typed report signed by the informant Shaligram Sah (P.W. 5) was presented before the Superintendent of Police, Banka on 30.5.2003. As may appear from the written report available on record, the Superintendent of Police, Banka directed the Officer Incharge of Rajaun police station to register a case and investigate. It appears from the typed report that on the day of occurrence, when the informant, his wife, victim Manju Kumari and Krishna Kumari were lying in the Angan of the house, the present appellant and another accused Dilip Paswan and others armed with country made gun came there and lifted the prosecutrix Manju Kumari (P.W.6) on gun point to take her away. The informant stated that he and his family members resisted the act of the appellant and other accused persons, but they threatened him and his family members to be killed and further threatened that if they proceeded in the matter, they shall have to face serious consequences. The allegation was that the accused persons were known criminals and a few days ago they had held out threats and in order to maligning their social prestige, they had committed the offence at gun point. 3. It was stated that the informant had approached the local police for lodging a report regarding the incident, but he was driven away by being chastised and the officer incharge of the police station was not inclined to take steps for recovery of the girl and that caused the delay in presenting the written report before the Superintendent of 3 Police, Banka. On the basis of the said written report and as per the direction of the Superintendent of Police, Banka, Rajaun P.S. Case No. 54 of 2003 was registered under section 366A IPC by ASI Vijay Kumar (P.W. 8), who stated in his evidence that he made hectic search for the girl and also recorded the statement of witnesses and, lastly, could find out the girl on some secret information on 16.6.2003 and produced her before the Magistrate for her statement under section 164 Cr.P.C. as also before a doctor for her medical examination for assessment of her age. Finding materials sufficient, he submitted charge sheet by sending up the present appellant for trial. 4. The plea of the appellant in his defence was of elopement of the lady on her own free will with the appellant to go out of her parents’ house and after being pressured by the police and his family members, it was suggested to P.W. 6, the victim, that she had framed facts to falsely implicate the appellant. 5. In course of the trial, eight witnesses were examined, which included P.W. 8, the Investigating Officer of the case and P.W. 7, the doctor, who issued Ext. 3, the medical report. Other witnesses included the victim P.W. 6 and her family members including the informant (P.W.5). The witnesses supported the prosecution case that the victim was lifted at gun point and forcibly taken away by criminals including the present appellant and she could not be traced, as a result of which, the case had to be registered and subsequently, when the victim came back, she adduced evidence against the 4 appellant and she stated about being raped by the present appellant as may appear from the evidence of P.W. 5. P.W. 6 also stated same facts during her evidence. However, finding that the doctor had assessed her age between 18-19 years, the learned trial judge did not sustain the charge under section 366A IPC which was earlier framed against the appellant and convicted the appellant only under sections 366 and 376 IPC. 6. It was contended by Shri Om Prakash Pandey, learned amicus curiae, that once the learned trial court had accepted that P.W. 6 was above 18 years of age and as such acquitted the appellant for the charge under section 366A IPC, the learned trial judge ought not to have convicted the appellant under section 366 or 376 IPC. It was contended that the learned trial judge erred heavily in considering the circumstances which were appearing from the evidence of witnesses specially the victim P.W. 6 and as such went on to record wrong conviction of the appellant under both sections. What were the circumstances which were appearing from the evidence of witnesses specially P.W. 6, were highlighted by Shri Pandey, the learned amicus curiae during the course of his submissions. 7. Learned Additional Public Prosecutor was a bit lukewarm in submitting that some offence appears committed but when the age of the victim was considered in the light of an unexplained delay of 19 days in lodging the report, the judgment and order of conviction and sentence appears not sustainable. 5 8. Kidnapping or inducing any minor girl under the age of eighteen years by any means whatsoever so that she goes to any place or to do any act with intent as such that the girl is likely to be forced to illicit intercourse are the ingredients which constitute offence under section 366A IPC. An offence under section 366 IPC contemplates kidnapping or abducting or inducing any woman with intent that she either may be compelled or is known likely to be compelled to marry any person against her will or that she may be forced or seduced to illicit intercourse. Kidnapping is of two types. When it comes to kidnapping from lawful guardianship, then either the use of force or inducement is required to be the element of such acts so as to taking the female under eighteen years of age out of the keeping of her lawful guardianship. ‘Taking away’ or ‘inducing’ any minor are two terms which could be constituting the initial ingredients of section 366 IPC. Taking away necessarily envisages use of force but when it comes to enticing away, then inducement doled out to a minor, envisages some sort of cheating by misrepresentation of certain facts which is the other aspect of kidnapping as regards enticing away a minor. Kidnapping by itself is an offence which could be sentenced under section 363 IPC but abduction simplicitor is not an offence which could be punished. Abduction could be punished only when it is committed or done with certain intent or purpose as could be gathered from different provisions, like, those contained in sections 364, 364A or 366 IPC. If the intent or purpose appears lacking then the offences which could 6 be punishable under section 366 IPC may not be constituted. Likewise, if the elements of being enticed away or being taken away are also absent on account of lack of evidence then also that offence could not be constituted and no court could record any conviction against any person so as to inflicting any sentence upon him. Contention was seriously made on account of the acquittal of the appellant under section 366A IPC by Shri Pandey that once a court was acquitting the appellant it was held for all purposes that the lady was eighteen years of age and thus it was accepting the evidence of P.W. 7, the doctor who had examined the victim and issued Ext. 3. Thus, the question which was to be decided by the court below and which the court missed to decide was as to whether the lady had been kidnapped which necessarily envisages the use of force. It was contended that it is true that witnesses have stated that the victim was lifted on gun point but her subsequent conduct which was emerging from her own evidence could be so glaring as not to lead any reasonable mind to a conclusion that she had indeed been abducted so as to be taken away to different places for the purpose which was alleged by her. 9. By referring to me the evidence of P.W. 6, it was submitted that P.W. 6 had herself admitted that she was taken, firstly, to the maternal grand mother’s house of the appellant and she was kept there for a few days and from there the victim was shifted to the township of Bhagalpur where she was kept at different places on different dates. It might be that some parts of ingredients of taking 7 away were there, but the conduct of the victim of not raising her voice while being lifted or being taken away from her house and further not resisting the attempt or not raising any hue and cry while she was being confined at different places could be indicative of her willingness as to accompany the appellant. As such, it could not be abduction simplicitor, least to talk of kidnapping and it could simply be indicative of the fact that she was a willing companion of the appellant and possibility was that she had herself eloped. 10. On consideration of the submission and evidence of P.W. 6, what I could record is that the submission could not be brushed aside by any stretch of reasoning and marshaling of facts. The lady was lifted at gun point, the family members as per P.W. 5, the informant, were resisting the attempt of lifting and taking away of P.W. 6. But, when it comes to considering the evidence of P.W. 6, the victim, she stated that none of her family members was attempting to resist the act of the accused or was even raising voice of protest. The very evidence indicates as if the family members were either also hands in glove with the victim both in her elopement with the appellant or the lady, without their knowledge, slipped out of her parents’ house to accompany the appellant to different destinations. Theory of elopement of the lady with or without the consent of her family members appears more probable in the case when one considers the further circumstances, which appear from her own evidence. If a man was abducting someone against her will or against the will of her family members, the conduct of the man would not be 8 to confine such lady in the house of one of his relatives. He will be attempting to take her to such much far away a place where there could not be any relatives of his where he could be identified or known to reside with an unknown lady whereas in the present case, the appellant was taking the lady to his Nani’s house where the lady, in all probability, could have made the entire episode public in order to liberate her, if she so liked, but nothing like that appears happening from the evidence which was adduced. The lady states that she remained in that very house for quite some days. It was in a village. If the lady had been forcibly taken away, she could have complained to the old grand mother of the appellant and besides her to many of her neighbours who could be visiting or who could have been contacted by the lady herself so as to point out as to how the appellant had was behaved with her. 11. There is complete lack of evidence on the natural conduct of the lady. It may be that the lady might be a willing partner of the appellant. Subsequently, the lady was shifted to the township of Bhagalpur. This Court could take judicial notice of the fact that the township of Bhagalpur being a district headquarters could be as populous as it could be, making it easy for the lady to contact anyone to tell her woes which was heaped by the present appellant. She was kept at different places as may appear from her own evidence. She was not raising any cries or seeking help of any one by pointing out to general people with whom she might have come across as to how she had been picked up to be taken to different places and, lastly, to 9 Bhagalpur. Besides, she could have shouted out her tale of harassment and opportunity in that behalf must not have been scars. Nothing was happening anywhere and the lady was, lastly, recovered on 16.6.2003, i.e., after more than a month of the occurrence and then she was narrating the story as has been placed before the court by the investigating agency. 12. I have somewhere in the present judgment indicated that it might be a possibility that the family members of the lady were either consenting party to the elopement of the lady or were fully aware of it that the lady had eloped. A very strong circumstance appears in support of that probability. The act of taking away took place on 11.5.2003, the report was filed on 30.5.2003, i.e., after 19 days, and the explanation was that the police officers had rebuked and chastised the informant and driven him out of the police station instead of taking action towards the recovery of the girl. The informant was approaching the Superintendent of police by presenting his typed report. It was not that he could not have approached the Superintendent of Police earlier. He does not say as to why he did not approach any higher police officer after having faced the trauma of being driven away from the police station by the police officers and was sitting tight over the matter despite the fact that his daughter had been taken away for long nineteen days. The explanation could have been checked on by putting certain questions to P.W. 8, who was one of the police officers posted in the same police station and then the prosecution could have satisfactorily 10 explained the enormous delay in presenting the report before the police. I am aware of the fact that for some reasons there might be some delay in reporting the matter in cases of present class as parents are slow in bringing such matters to the police for securing their respect in the society. Besides, the concealed threat to the future life of the girl also discourages parents to approach the investigating agency but, the manner of occurrence, the background of the appellant being hardened criminals, as is pointed out by the informant, could have been serious catalyst to move him fast to take proper action by filing an appropriate report. 13. However, the absence of any statement either in the typed report or in the evidence of P.W. 5 that during that course he was making any attempt of searching the girl also convinces that the explanation is a hoax and probably they were coming out with a report so as to cover up their cohort consent in the act of elopement of the lady. It was rightly pointed out by Shri Pandey, learned counsel for the appellant that these circumstances, which were prominently appearing from the evidence of the prosecution witnesses, were very thoroughly missed by the learned trial judge and that resulted in the illegal conviction of the appellant for the twin offences. 14. In the result, the appeal succeeds. The judgment and order of conviction and sentence are hereby set aside. The appellant is in jail. He shall be released forthwith if not wanted in any other case. 11 15. Shri Om Prakash Pandey, learned amicus curiae has assisted the court wonderfully and he deserves one fee of argument, which is directed to be paid by the Patna High Court Legal Services Committee for which purpose, let a copy of the first and the last pages of the judgment be made over to him. (Dharnidhar Jha, J.) Patna High Court, The 3rd August, 2011, NAFR/Anil/