JUDGMENT 1. THE instant appeal is directed against the judgment and order dated 29th July, 1988 passed by the learned 1st Court of Additional Sessions Judge, Midnapore, in S.T. Case No. XVIII of May, 1987. 2. THE learned Court by the said judgment found the appellant guilty of the offence under Section 366 of the Indian Penal Code. THE appellant was convicted accordingly and was sentenced to suffer rigorous imprisonment for five years. The prosecution case in brief is :- The victim, Anuva Mondal, was a school-going minor girl. She was kidnapped by the accused, Sk. Manu @ Manwar on 8th January, 1985 at Kanchannagar within P.S. Nandigram. It was with the intent to force her to marry or to have sexual intercourse against her will. The other accused persons abetted accused Sk. Manu in the commission of the said offence of kidnapping. The father of the victim girl was staying at a different place at the relevant time. After receiving information about the missing of his daughter, he rushed to the village. Since he could not trace his daughter despite searches, he lodged complaint with the police authority. 3. INVESTIGATING authority on the basis of the said complaint which was treated as FIR, proceeded with investigation and after completion of investigation, submitted charge-sheet. Learned Court framed charge as against the present appellant, Sk. Manu @ Manwar under Sections 366/ 376 of I.P.C. whereas the remaining 9 accused persons were tried for the offence under Sections 366/109 of the I.P.C. 4. PROSECUTION in order to establish the guilt of the accused persons examined as many as 13 witnesses. The accused persons pleaded not guilty to the charges and claimed to be tried. Defence examined one witness who was a medical officer. He conducted ossification test of the alleged victim girl. From the trend of cross-examination and the evidence of P.W.1, it appears that the defence case is denial of the prosecution allegation and the plea of innocence. The statement made by the appellant during his examination under Section 313 of the Code of Criminal Procedure further indicates that there was a romantic relationship between the alleged victim girl and the present appellant. It had been claimed that the victim girl on her own left the custody of her parents and took shelter in the place of the present appellant. It had been claimed that the victim girl on her own left the custody of her parents and took shelter in the place of the present appellant. The learned Trial Judge after taking into consideration all relevant facts and materials and on scrutiny of the evidence on record found that the present appellant guilty for the offence under Section 366 of I.P.C. Learned trial Court, however, held him. not guilty for the offence under Section 376 of I.P.C. and co-accused persons were also found not guilty for the offence under Sections 366/109 of I.P.C. Such finding of the learned trial Court has not been challenged by the prosecution by way of preferring any appeal. 5. IT appears that of the 13 witnesses examined on behalf of the prosecution, P.W-1 is the father of the victim. He was a teacher. He disclosed the date of birth of his victim daughter as 15th September, 1968. 6. P.W-2 is a neighbour who only stated about the fact that the accused/ appellant used to tease the victim. P.W-3 is the unfortunate victim who in her evidence in chief has sought to narrate the entire incident in minute details. From her evidence in chief, it appears that she was a student of Class-X at the time of the alleged incident. On 8th January, 1985, she went to her school for collecting her mark sheet and thereafter, she returned home. While in school, one of the accused persons namely, Idrish, disclosed her that she was 19 years of age and she could be converted to Islam. At about 7-30 p.m. in the evening, she went to the ghat of the tank for washing utensils. She deposed that there the accused Mabia Khatoon, Rejia, Obedulla, Manu caught her and ragged her to the bank of the tank. From there, she was taken to the house of Fatema, who was the mother of accused, Obedulla. There, she was told that she would be converted to Islam religion at Nekhoda Masjid, Calcutta. From there, she was shifted to village Subdi by the accused persons and was kept in the house of the maternal uncle of accused, Kasem. She, in her evidence in chief, categorically stated that she was taken by Kasem on a cycle. Three other accused persons namely, Manu, Obedulla and Taiyab followed them. From there, she was shifted to village Subdi by the accused persons and was kept in the house of the maternal uncle of accused, Kasem. She, in her evidence in chief, categorically stated that she was taken by Kasem on a cycle. Three other accused persons namely, Manu, Obedulla and Taiyab followed them. She further deposed that after being taken to the house of the maternal uncle of accused Kasem, she was made to share the room and sleep with accused Manu. She claimed that the said accused committed sexual assault on her against her will. From the village Subdi, she was taken to Mechada. Thereafter, she was shifted to Howrah and from there, she was taken to Metiaburz. According to her, out of fear, she chose not to open her mouth. She further claimed that she spent two nights at Metiaburz and the appellant/accused person used to commit sexual assault on her against her will. According to her, she was taken to Nakhoda Masjid for her conversion to Islam religion. She was, thereafter, shifted to Joynagar and took shelter in the house of Jainal Gazi, who was a colleague of the present appellant. It is her further evidence that the appellant stayed with her in the said place for one month. She claimed that she did not get any chance to get out of their clutches. Thereafter, she was shifted to Bihar and stayed in the house of a relation of the appellant for about a month. She clearly stated that she lived with accused Manu as husband and wife, of course, against her will. According to her, she was taken to a Lawyer but did not surrender in Court for some technical reason. She was, thereafter, taken to Khejuri. Dr. Haider of Contai conducted ossification test and issued a medical certificate. It was only after that, she surrendered before the Court. Her submission was recorded by the Investigating authority. She was produced before the Court of Magistrate and her submission was recorded by the Magistrate as well. She further deposed that she was taken to a Doctor by the police at Tamluk and there, she was examined by Radiologist. She, however, categorically denied that she voluntarily left the house of her father with intent not to return. There had been a Salish in the locality. She further deposed about her subsequent marriage. She further deposed that she was taken to a Doctor by the police at Tamluk and there, she was examined by Radiologist. She, however, categorically denied that she voluntarily left the house of her father with intent not to return. There had been a Salish in the locality. She further deposed about her subsequent marriage. There had been a raid in the house of her father at Muradpur by some persons and those persons looted the radio and cash of Rs. 1500/-. Her husband sustained injury in the said incident. She identified the accused/appellant as one of those persons who raided the house. 7. P.W-4 is the mother of the victim. She in her evidence in chief stated that her daughter, the victim, used to complain about the present appellant/accused person for teasing her. The accused Obedulla and Taiyab also used to tease her daughter. P.W-4 identified alt the accused persons and stated that her husband was a teacher. Of the accused persons, one Idrish was teacher. P.W-4 then deposed that 8th January, 1985 at about 7 a.m. she found her daughter missing. She went to the house of accused Idrish in search of her daughter. She was asked to wait but her daughter, Anuva, the victim, could not be traced out. Her husband was then at Muradpur. Intimation was sent to him. He immediately rushed and made searches but to no avail. After about four months, her husband got the intimation that Anuva had surrendered in Court. After that, her husband took Anuva to his custody. She also corroborated the evidence of the victim girl on certain material points. 8. P.W-5 in his evidence in chief just stated that on 8th January, 1985 Anuva was missing from the house of her father. P.W-6 stated that the mother of Anuva reported that Anuva had been taken away and she suspected that the accused persons were behind such act. After being brought back through Court, Anuva narrated in details about the incident and disclosed the names of the accused persons. 9. THERE is nothing in the evidence of P.W.-7, P.W-8 and P.W-9 worth mentioning. 10. P.W-10 was the Headmaster of the school where Anuva was admitted on 24th January, 1978. Such admission was made on the basis of a transfer certificate wherein her date of birth was indicated as 15th September, 1968. The transfer certificate had been marked Ext.5. 9. THERE is nothing in the evidence of P.W.-7, P.W-8 and P.W-9 worth mentioning. 10. P.W-10 was the Headmaster of the school where Anuva was admitted on 24th January, 1978. Such admission was made on the basis of a transfer certificate wherein her date of birth was indicated as 15th September, 1968. The transfer certificate had been marked Ext.5. In cross- examination, P.W-10 frankly admitted that he had no personal knowledge regarding the admission of Anuva. Referring to the transfer certificate which had been marked Ext.5, he stated that the same does not bear any seal of any school nor there was any counterpart. He further admitted that he was not present at the time of issuance of the said certificate. Referring to the admission register, P.W-10 stated that there too, the seal of the school was missing. P.W-11 is a police officer. His evidence is of formal nature. He identified the written complaint which had been marked Ext. 1. He proved the endorsement on it, marked Ext. 1/1. He filled in the formal FIR on the basis of the said written complaint. The officer-in-charge of the police station Debra took up the investigation of the case. 11. P.W-12 is another police officer who, in January, 1975 was O.C. of Nandigram Police Station. In evidence in chief he stated that on 11th January, 1985, he took up an investigation of the case. In his evidence in chief, he narrated in details as to the various steps taken by him during such investigation. 12. P.W-13 is another police officer who took up investigation of the case from P.W-12. He got the statement of the victim girl recorded by the learned Magistrate at Tamluk. He further got the victim girl medically examined. P.W-13 stated that the victim girl refused to get herself physically examined. This is all about the prosecution evidence on record. The accused person during his examination under Section 313 of Cr.P.C. denied the material allegations made by the prosecution witnesses and pleaded innocence. The appellant/accused person stated that he had relation with Kripanath Mondal and he was on visiting terms. He further claimed that Anuva's brother and mother used to often call him to their house. He referred to the 3/4 letters written by Anuva to him. According to him, Anuva on a particular night came to his house. She took conversion to Islam. He further claimed that Anuva's brother and mother used to often call him to their house. He referred to the 3/4 letters written by Anuva to him. According to him, Anuva on a particular night came to his house. She took conversion to Islam. She emphatically stated that they got married thereafter. 13. SIGNIFICANTLY enough, the only witness examined on behalf of the defence is a doctor who on 29th April, 1985 examined Anuva and conducted ossification test. He in his evidence in chief clearly stated that Anuva was between 18 to 19 years of age at the time of her medical examination. 14. AS stated earlier, the learned trial Court did not find the present appellant guilty of the offence under Section 376 of I.P.C. The other accused persons except the present appellant were also not found guilty of the offence under Sections 366/109 of I.PC. Learned Counsel for the appellant while assailing the impugned judgment categorically mentioned that learned trial Court failed to appreciate the evidence on record in its proper perspective. 15. MR. Roy appearing as learned Counsel for the opposite party / State invited attention of the Court to the materials on record. 16. THE first point that has been raised at the time of argument is that the alleged victim girl was above 18 years of age at the relevant time. In this context, evidence of D.W-1 has been referred to. Learned trial Court categorically laid emphasis on the evidence of father of the victim girl that the girl was born on 15th September, 1968. Thus, the learned Court found that on the date of the incident, i.e. 8th January, 1985, the victim girl was 16 years 3 months and 23 days. Learned trial Court found that the admission register, Ext. 4 and the transfer certificate, Ext. 5 also supported the aforesaid stand of P.W.1. Significantly enough, the learned Court appears to have dealt with both the evidence of Radiologist who examined the victim girl produced by the Investigating authority as well as that of the doctor who examined the girl on 29th April, 1985. The doctor who examined the victim girl being produced by the police authority gave her age on the date of examination as above 17 years but below 19. 17. The doctor who examined the victim girl being produced by the police authority gave her age on the date of examination as above 17 years but below 19. 17. D.W-1 who conducted ossification test of the victim girl earlier gave the age of the victim girl as on the date of examination as 19 years. Learned trial Court does not seem to have been impressed by either of the two of the ossification reports. But learned trial Court after overall assessment of the evidence on record came to the conclusion that on 8th January, 1985, the victim girl was about 16 years and half. There is no specific reason assigned as to what prompted the learned trial Court to discard the evidence of P.W-1 and particularly when the medical report of the doctor who examined the victim girl being produced by the police was taken into evidence under Section 294 of the Code of Criminal Procedure. 18. MOREOVER, the learned trial Court did not at all deal with the matter in its proper perspective. There is no discussion as to whether the victim girl could be said to have attained the age of maturity being admittedly above 17 years of age. I find no reason for not accepting the age as indicated in the evidence of the doctor, D.W-1. and overall analysis of the evidence on record clearly indicates that the family of the victim girl as well as that of the present appellant/accused person were known to each other. There is no surprise in the fact that the victim girl was having intimate relationship with the appellant/accused person. Evidence on record further indicates that both parties were eager to give such relationship concrete form. This resulted in the victim girl leaving the custody of her parents. There is no iota of evidence on record that at any point of time the victim girl raised any alarm or hue and cry or sought for any help or assistance. Strangely enough, she was allegedly taken from the bank of a tank in the concerned locality in a cycle which was again followed by three others. Thereto, the victim girl did not raise any objection. The fact that she chose to leave her paternal home and joined the appellant/petitioner in order to give said relationship a concrete form cannot be disbelieved in the facts and circumstances of the present case. 19. Thereto, the victim girl did not raise any objection. The fact that she chose to leave her paternal home and joined the appellant/petitioner in order to give said relationship a concrete form cannot be disbelieved in the facts and circumstances of the present case. 19. INTERESTINGLY enough, when there is categorical evidence on record, particularly that of the victim girl, that the appellant/accused person was accompanied by some other accused persons at the time of being taken away, the said accused persons had been found not guilty by the learned trial Court for the offence under Sections 366/109 of I.P.C. No reason has been assigned as to why those persons who were allegedly involved in the self-same incident had been left out. Merely because the present appellant claimed to have entered into a marriage with the victim girl after her conversion to Islam religion does not by any stretch of imagination put him on a platform separate from that of the co-accused persons so far the alleged offence of kidnapping are concerned. 20. SECTION 366 of the Indian Penal Code reads as follows :- "366. Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid". Section 359 of the Indian Penal Code lays down that the kidnapping is of two kinds : kidnapping from India, and kidnapping from lawful guardianship. 21. SO far the present case is concerned, it is a case of an alleged kidnapping from lawful guardianship. 22. SECTION 361 of the Indian Penal Code deals with kidnapping from lawful guardianship. Section 359 of the Indian Penal Code lays down that the kidnapping is of two kinds : kidnapping from India, and kidnapping from lawful guardianship. 21. SO far the present case is concerned, it is a case of an alleged kidnapping from lawful guardianship. 22. SECTION 361 of the Indian Penal Code deals with kidnapping from lawful guardianship. It reads :- "Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship". As discussed earlier, learned trial Court had not made any observation worth mentioning as to why the persons who were with the present appellant at the relevant time of her being taken away had been found not guilty of the offence under Section 366/109 of I.PC. 23. THIS by itself suggests that the learned trial Court could not place reliance upon the evidence on record in that regard. If so, it remains a wonder as to how could present appellant be picked up and found to be guilty of the said offence under Section 366 of I.P.C. 24. IT is needless to mention that the learned Court found the appellant not guilty of the offence under Section 376 of I.P.C. Thus, the judgment under challenge manifestly suffers from inherent impropriety and antagonistic contradictions. I fully accept the contention made by learned Counsel for the appellant that there had been a total failure in appreciation of the evidence on record. It was not only with regard to findings as to the age of the victim girl at the relevant time, but it was manifested in the manner in which the entire evidence on record had been dealt with. 25. CONSIDERING all these facts and circumstances, I find it difficult, if not impossible, to brush aside the grievances as ventilated on behalf of the appellant. The impugned judgment and order of conviction and sentence of the present appellant dated 29th July, 1988, be, accordingly, set aside. The appellant is found not guilty of the offence under Section 366 of the Indian Penal Code as well. He be acquitted accordingly and be released from his bail bonds. 26. The impugned judgment and order of conviction and sentence of the present appellant dated 29th July, 1988, be, accordingly, set aside. The appellant is found not guilty of the offence under Section 366 of the Indian Penal Code as well. He be acquitted accordingly and be released from his bail bonds. 26. SEND a copy of this judgment along with lower Court records to the learned Court for information and necessary action.