Case: Moniram Hazarika Vs. State of Assam

2. Brief facts necessary for the disposal of this appeal are as30.3.1990 at about 8.30 p.m.,Paresh Saikia lodged a complaint in Bebarapara police out post alleging that his younger sister Bibi Saikia who was a minor had been kidnapped by the appellant herein who was also a resident of the same village. On the basis of the said complaint a case was registered and investigation was initiated. In the course of the investigation, the I.O. recorded the statement of as many as six witnesses and on completion of the investigation a chargesheet under Section 366 IPC was filed before the trial court. In the complaint filed byas also in his evidence before the court,stated that his sisterwas a student of VIII standard at that time and was a minor and at about 6.30 p.m. on 30.3.1990 he came to know from his brother that his sister was missing and he was also informed that she was seen in the company of the appellant in the locality. So suspecting the appellant of having kidnapped his sister, he went to the house of the appellant where he was not allowed to enter the house by the appellant and his brother. However, he noticed there that arrangements were made for performing a marriage ceremony. He also mentioned in his evidence as also in his complaint that his sister was a minor and in support of his case he had produced her date of birth as entered in school certificates. The victim was subjected to medical examination andthe doctor who examined the victim had opined after performing the necessary tests that she was below the age of 18 years. While the evidence ofthe father of the victim as supported by the records of the school also showed that the girl was a minor on the date of the incident. Victimherself has stated in her evidence that on the relevant date when she had gone out to answer the call of nature the appellant by force took her to his house where his mother andwere present who made her change her dress and put vermilion on her forehead and prepared her for the marriage with the appellant.3. Thus on the basis of the above evidence the courts below came to the conclusion that on the date of the incidentwas a minor and the act of the appellant in taking her with the object of getting her married to him amounted to an offence punishable under Section 366 IPC and hence found him guilty and sentenced him as stated above.

Reasoning: It is clear from the finding of facts of two courts below which is based on material available on record, thatwas a minor at that time when she was taken away from her lawful guardian. As a matter of fact the said finding is not seriously challenged. The case of the appellant is thatvoluntarily accompanied him with a view to marry him and there was no enticement or taking away ofas contemplated under Section 361 of IPC. We think the material on record shows otherwise. It has come on record that the appellant was known to the family ofand was on visiting terms. It is his own case that during such visits he developed intimacy withIt is the case of the defence that even on the day of incident when the appellant was standing outside the house,came to him and requested him to take her away. But there is material on record to show that the appellant promised to marry her and it is based on such promise she went away with the appellant and there is also material on record to show that on that day preparation for marriage was already made in the house of the appellant. Thus two things are clear from this fact; one, that there was a promise of marriage and secondly, based on the said promisewent with the appellant. Of course,had come out with the case that she had come out of the house to answer the call of nature when she was forcibly taken by the appellant which part of the prosecution case is not accepted. But the material on record, as stated above, shows that there was a promise of marriage made towhich amounts to enticement of a minor because of which she had left the house of her lawful guardian. In this background, in our opinion, the courts below were justified in coming to the conclusion that the appellant had committed the offence punishable under Section 366 of IPC.It is on the basis of the said finding that the minor in that case walked out of the house of her guardian without any inducement from the accused, this Court came to the conclusion that the accused in that case was not guilty of the offence.It is clear from the above observations of this Court that if the accused played some role at any stage by which he either solicited or persuaded the minor to abandon the legal guardianship, it would be sufficient to hold such person guilty of kidnapping.9. In the instant case, we have noticed from the evidence that appellant who was a regular visitor to the house oftook undue advantage of his friendship and persuaded the minor to abandon the guardianship with a promise of marriage, which on facts of this case is sufficient to uphold the judgments of the courts below.10. We having considered two other judgments cited before us by the learned counsel for the appellants, are satisfied that it is not necessary for us to deal with the same elaborately since on facts of this case it is established that the appellant had taken the minor by enticing her and hence had committed the offence of kidnapping which kidnapping was for the purpose of marrying the said minor. In our opinion, courts below were justified in convicting the appellant for an offence punishable under Section 366 IPC.