Crl.A. 138/2003 BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY JUDGMENT AND ORDER (ORAL) Heard Mr. P. Talukdar, learned counsel for the Appellant. Mr. B.S. Sihna , learned Addl. PP represents the State. 2. This Appeal is presented to challenge the judgment and order dated 13.3. 03 in Sessions Case No. 346(DM)/2001 rendered by the learned Sessions Judge at M angaldoi, whereby the appellant has been convicted under Section 366 IPC and sen tenced to Rigorous Imprisonment for 7 years and to pay a fine of Rs.10,000/- and in default, further R.I. for 1 year. 3. The criminal process in this case was set in motion by the FIR filed by Sarat Baruah (PW-2) on 23.5.2000 with the information that on the previous date i.e. 22.5.2000 at about 9-30 A.M., while his minor daughter Jonali Baruah aged a bout 14 years was proceeding to her School, she was kidnapped from the front of the School. The FIR also disclosed that on further enquiry, the informant learnt that his daughter has been kidnapped by Cheniram Deka (appellant) who is engage d as Home Guard in the residence of the Addl. Supdt. of Police and in the kidnap ping of his daughter, one Dilip Deka helped Cheniram Deka. Thereafter the Mangal doi P.S. Case No. 134/2000 under Section 366A IPC was registered. But the police failed to gather any information on the whereabouts of the victim girl. After 5 (five) months of the kidnapping incident, the girl was brought to her parents r esidents on 10.10.2000 by two Bengali boys, who found her weeping in front of a rented house in Rukmini Gaon, Guwahati and on learning about her plight , the tw o boys in order to help her, brought her to her parents house at Mangaldoi. 4. Thereafter the victim was medically examined at the Gauhati Medical Coll ege Hospital and her statement was also recorded before the Magistrate. 5. After the girl was recovered the accused appellant was arrested on 14.10 .2000 and he was charge sheeted on 23.5.2000 under Section 366 IPC. 6. In the trial, 6 witnesses were presented from the side of the prosecutio n whereas the defence produced 2 witnesses. 7. PW-1 was the victim girl and in her evidence she stated that on 22.5.200 0 she was 13 years old and was a student of Class-VIII of Mangaldoi Town Bidyapi th High School. That day at about 9-30 A.M. she was proceeding to the School on a bicycle when the accused along with his accomplices pulled her into his Maruti Van. She could not raise any alarm as her mouth was gagged. Then she was taken by the accused in the Maruti Van to the residence of the elder sister of the acc used at Paneri. From Paneri she was taken to the residence of another sister of the accused at Harisinga. At Paneri and at Harisinga, the accused sexually assau lted the victim girl despite her protest. 7.1 Thereafter the accused took her to Kachubeel and from there once again s he was taken to the accused’s elder sister’s house at Paneri. Thereafter the acc used and some of her relatives including his elder brother Chandi Deka took the victim to Rukmini Gaon at Guwahati and put her up in a rented house where again , the accused forced himself upon the victim. Thereafter when the victim was fou nd crying crying at Rukmini Gaon, after hearing her story they escorted her to her parents’ house at Mangaldoi. 8. PW-2 is Sarat Baruah, the father of the victim who had lodged the FIR on 23.5.2000. He deposed that the victim was his second child and on the day of th e deposition on 26.7.02 she would be aged about 16 years. The father stated that he got married in the year 1983. In his deposition, PW-1 stated that after the victim was found missing from the School on 22.5.2000, no information was receiv ed about her till 10.10.2000, when she was brought to Mangaldoi from Guwahati by few Bengali/Bihari boys. 9. PW-3 is Sashi Prava Baruah is the mother of the victim girl. She stated that she got married in the year 1983 and in 1985 their son (first child) was bo rn and that the victim (their second child) would be aged about 15 years on the day of her deposition. The mother stated that on the day of the incident, the vi ctim, a class Viii student, went to School on her bicycle but she did not return from the School. In the evening she was informed by the School Chowkidar throug h some village boys that although her daughter was seen proceeding to School she was not found in the School. The mother further stated that Jonali was brought back home after 4/5 months of her kidnapping by few boys from Guwahati. The mot her also stated that the victim informed her that the accused had kidnapped her and kept her at various places where he forcibly had sex with the victim. 10. PW-4, was the Assistant Professor of Forensic Medicine, GMCH, Guwahat wh o examined the victim on 13.10.2000 after she was restored to her parents. The D octor deposed that no evidence of recent sexual intercourse in the girl was foun d but she is used to sex. No injury also was detected on her body and private pa rts. Her age wouldbe above 16 years and below 18 years. 11. PW-5 Mridul Baruah was an S.I. of the Mangaldoi P.S. who was initially e ntrusted with the investigation of the case. He stated that as the accused was a bsconding he could not be arrested. The I.O. did not take steps to seize the Mar uti Van in which the victim was abducted. 12. PW-6 Pradip Bora was a later Investigating Officer of the case who got r ecorded the statement of the victim before a Magistrate after she was recovered. He also got her medically examined at the GMC Hospital. The witness deposed tha t on his transfer, his reliever S.I. Babul Bora had filed the charge sheet in t he case. He had arrested the accused on 14.10.2000 from the residence of one Go vinda Das of Borkola village. 13. The plea of the accused was of total denial. Two defence witnesses were also produced on his behalf. Of them, DW-1 Jiten Deka is a brother-in-law of the accused who deposed and he stated that the accused had not kept the victim at h is residence at Paneri. DW-2 Mukul Chandra Baruh was another related brother-in-law of the accus ed and he stated that the victim was not kept in the residence of his brother Ka runa at Harisinga or at the witnesses’ residence. These 2 defence witnesses have been adduced to cast doubt on the story g iven by the victim girl that she was kept in the residences of the relatives of the accused at Paneri and Harisinga respectively. 14. The appellant in his defence contends that the victim willingly went wit h the accused on 22.5.2000 because of a love affair between them and therefore i t cannot be said to be a case of kidnapping. It is also contended that the victim was a major when she went with the accused on 22.5.2000 and being a consenting party, no charge under Section 366 o f the IPC can be levelled against the accused. To show that the victim was a con senting party, the learned counsel submits that during the 5 (five) months of li ving with the accused, she had not raised any protest until the time, she was at the rented house in Rukmini Gaon, Guwahati and this according to the learned co unsel, clearly establishes that no force was used by the accused appellant again st the victim to kidnap her or to keep her with him. 15. However, Mr. S. Sinha, learned Addl. PP submits that there is no evidenc e to show that the victim willingly went with the accused appellant and since sh e was kept confined mostly in the residences of the accused’s relatives, it woul d be natural that she would fear to raise alarm during those days and she must h ave been emboldened only when, she was taken to a rented accommodation at Guwaha ti. He also points out that the victim was a minor girl of 13 yeafrs and must ha ve been scared by her confinement. It is further submitted by Mr. Sinha that considering the age of the vic tim, consent of the victim even if assumed, will have no material bearing on the conviction made under Section 366 of the IPC. 16. The victim in this case was a student of Class-VIII and she was 13 years of age on the day of the incident. She is the second child of her parents who h ave testified to have got married in the year 1983. The first issue (the son) wa s born in the year 1985. Being the second child with her elder brother being bor n in the year 1985, the victim could at the earliest be born in the year 1986. I n that event, on the day of incident i.e. 22.5.2000 she would be aged about 13/ 14 years. The medical evidence of the Dr. K.C. Das (PW-4) shows that she was age d about 16 years but below 18 years on the day of the incident. Therefore, the m edical evidence on the age of the victim being about 16 years old ,also tallies with the testimony of age given by the parents and the victim herself. According ly I am of the considered view that when she was abducted on 22.5.2000, the vict im was a minor girl and I find no fault with the finding recorded by the learned trial Court that the victim was a minor on the day she was taken away by the ac cused from the lawful custody of her parents. . 17. It is contended on behalf of the accused/appellant that the victim willi ngly went with the accused/appellant and no force was applied in her kidnapping. But the victim herself stated that she was gagged and pushed into a waiting Mar uti Van by the accused and his accomplices. The victim also stated that earlier when refused the overtures of the accused, he threatened to harm her brother and her parents. This testimony of the victim stands un-rebutted and I have no reas on to disbelieve the victim’s deposition. The corroboration for the testimony of a minor victim girl, would in my opinion be unnecessary as her testimony is fou nd to be reliable. 22. In any event when the victim is found to be a minor girl, even if it is assumed that she had voluntarily gone with the accused, would hardly have any be aring for a conviction under Section 366 of the IPC as it is clearly provided un der Section 361 that removal from lawful guardianship, of a female under 18 year s, without the consent of the guardian amounts to ’kidnap’ under the provisions of Section 366 of the IPC. of a minor female from the lawful guardianship of her parents. 19. The defence version projected by the two defence witnesses that the accu sed had not taken the victim to relative’s residence at Paneri and Harisinga vi llage are found to be unreliable. That apart the case under Section 366 IPC is m ade out immediately after the victim is taken away from the lawful guardianship of her parents and the subsequent events and which all places the victim was tak en by the accused, may not have any materials bearing in confirming the convict ion under Section 366 of the IPC. 20. For the foregoing reasons, I find no merit in this appeal and the same i s hereby dismissed. The judgment of the trial Court in Sessions Case No.246 (DM) / 2001 dated 13.3.2002 accordingly stands affirmed. 21. Send down the LCR.