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2014 DIGILAW 340 (TRI)

Bikash Das v. State of Tripura

2014-10-28

S.C.DAS

body2014
JUDGMENT S.C. Das, J. 1. This revisional application under Section 397 read with Section 401 of Cr.P.C., is directed against the order dated 25.08.2009 passed by learned Sessions Judge, South Tripura, Udaipur in Case No. ST 16(ST/U) 2008 where-under the learned Sessions Judge directed framing of Charge under Section 363 of IPC against the accused-petitioner Bikas Das alias Ranadhir Das to face trial in the court of learned Chief Judicial Magistrate, South Tripura, Udaipur. 2. Heard learned Sr. counsel Mr. A.K. Bhowmik for the petitioner; learned P.P., Mr. A. Ghosh for the State-respondent and learned counsel Mr. D. Bhattacharji for the respondent No. 2. 3. Respondent No. 2, Amal Kumar Nandi on 12.03.2007 lodged an FIR before the O.C., R.K. Pur P.S. alleging that on 10.03.2017 his minor daughter Jayasree Nandi aged about 16 years 6 months, while was returning from Hariananda School, at about 1-30 p.m. was taken to a Maruti Car by accused Bikas Das and two others boys and she was thereby kidnapped by the accused persons. Consequently, R.K. Pur P.S. Case No. 67 of 2007 under Section 366A of IPC was registered and in the course of investigation I.O. recorded statement of the alleged victim girl Jayasree Nandi and other material witnesses who were accompanying her at the time when she was returning from School and also produced her before the learned Judicial Magistrate 1st Class for recording her statement under Section 164 of Cr.P.C. School Certificate of Jayashree was seized and that School Certificate was reflecting her date of birth 15.07.1990 which means she was aged about 16 years 7 months at the time of alleged occurrence. After completion of investigation police submitted charge-sheet and learned Sessions Judge initially by order dated 02.08.2008 decided to frame charge under Section 376(1) and 366A of IPC and that order was challenged by filing Criminal Revision Petition No. 60 of 2008 before the Agartala Bench of the Gauhati High Court and by order dated 06.04.2009, learned Single Judge of the Agartala Bench of Gauhati High Court allowed the revisional application and set aside the impugned order dated 02.08.2008 passed by learned Sessions Judge and remanded the case to the Court of learned Sessions Judge to re-examine the materials as to whether there may be a charge for any offence of kidnapping as defined in Section 361 of IPC. Thereafter, the learned Sessions Judge by impugned order dated 25.08.2009 has held that a case punishable under Section 366A of IPC has been well made out against the accused-petitioner and directed framing of charge accordingly for the offence punishable under Section 363 of IPC and remanded the case to the Court of learned Chief Judicial Magistrate, South Tripura, Udaipur for trial. 4. By the present revisional application, the said order dated 25.08.2009 has been challenged. 5. Learned Sr. counsel Mr. Bhowmik has submitted that the accused had neither taken nor enticed away the alleged victim girl rather according to her own statement she called the accused to come with a vehicle and she voluntarily boarded the vehicle even without being asked by the accused and so, the very ingredients of taking and/or enticing since absent, no charge can be framed against the accused for commission of offence punishable under Section 363 of IPC. 6. In support of his contention learned Sr. counsel referred the case of S. Varadarajan V. State of Madras, reported in AIR 1965 SC 942 and also a decision of the Gauhati High Court of Mihir Das V. State of Tripura, reported 2006 CRI.L.J. 1500. 7. Learned P.P. and learned counsel Mr. Bhattacharji both have submitted that admittedly the alleged kidnapped girl Jayashree Nandi was minor on the date of occurrence. She was aged 16 years 7 months and so, taking her with the accused for the purpose of marrying her is an offence punishable under Section 493 of IPC and hence, the learned Sessions Judge rightly directed framing of charge against the accused-petitioner. 8. In course of investigation, I.O. has recorded the statement of the victim girl Jayashree and she was also produced before the learned Judicial Magistrate for recording her statement under Section 164 of Cr.P.C. and in both the statements she stated that she sent message to the accused to come with a vehicle on the date of occurrence since on that day her examination will be over and the accused came there with a Maruti vehicle and on seeing the vehicle she boarded the vehicle and went away with the accused following a love affairs of about one year. Her schoolmates who were with her have also stated in the same tune. Her schoolmates who were with her have also stated in the same tune. The fact, which has come to surface, is that the accused was informed by the alleged kidnapped girl to come near the school with a vehicle and the accused came there. The alleged kidnapped girl on seeing the vehicle boarded it and went away with the accused. There is no iota of materials in the statement of the alleged kidnapped girl and other witnesses that the accused asked her to board the vehicle to go with him. Under such circumstances, the ingredients of offence of kidnapping from the lawful guardianship are found to be absent. 9. The Supreme Court in the case of S. Varadarajan (supra) almost in similar fact has held-- "7. The question whether a minor can abandon the guardianship of his or her own guardian and if so the further question whether Savitri could, in acting as she did, be said to have abandoned her father's guardianship may perhaps not be very easy to answer. Fortunately, however, it is not necessary for us to answer either of them upon the view which we take on the other question raised before us and that is that "taking" of Savitri out of the keeping of her father has not been established. The offence of "kidnapping from lawful guardianship" is defined thus in the first paragraph of s. 361 of the Indian Penal Code: "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." It will thus be seen that taking or enticing away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping. Here, we are not concerned with enticement but what, we have to find out is whether the part played by the appellant amounts to "taking", out of the keeping of the lawful guardian, of Savitri. Here, we are not concerned with enticement but what, we have to find out is whether the part played by the appellant amounts to "taking", out of the keeping of the lawful guardian, of Savitri. We have no doubt that though Savitri had been left by S. Natarajan at the house of his relative K. Natarajan she still continued to be in the lawful keeping of the former but then the question remains as to what is it which the appellant did that constitutes in law "taking". There is not a word in the deposition of Savitri from which an inference could be drawn that she left the house of K. Natarajan at the instance or even a suggestion of the appellant. In fact she candidly admits that on the morning of October 1st, she herself telephoned to the appellant to meet her in his car at a certain place, went up to that place and finding him waiting in the car got into that car of her own accord. No doubt, she says that she did not tell the appellant where to go and that it was the appellant himself who drove the car to Guindy and then to Mylapore and other places. Further, Savitri has stated that she had decided to marry the appellant. There is no suggestion that the appellant took her to the Sub-Registrar's office and got the agreement of marriage registered there (thinking that this was sufficient in law to make them man and wife) by force or blandishments or anything like that. On the other hand the evidence of the girl leaves no doubt that the insistence of marriage came from her own side. The appellant, by complying with her wishes can by no stretch of imagination be said to have taken her out of the keeping, of her lawful guardian. After the registration of the agreement both the appellant and Savitri lived as man and wife and visited-different places. There is no suggestion in Savitri's evidence, who, it may be mentioned had attained the age of discretion and was on the verge of attaining majority that she was made by the appellant to accompany him by administering any threat to her or by any blandishments. There is no suggestion in Savitri's evidence, who, it may be mentioned had attained the age of discretion and was on the verge of attaining majority that she was made by the appellant to accompany him by administering any threat to her or by any blandishments. The fact of her accompanying the appellant all along is quite consistent with Savitri's own desire to be the wife of the appellant in which the desire of accompanying him wherever he went was of course implicit. In these circumstances we find nothing from which an inference could be drawn that the appellant had been guilty of taking away Savitri out of the keeping of her father. She willingly accompanied him and the law did not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him. She was not a child of tender years who was unable to think for herself but, as already stated, was on the verge of attaining majority and was capable of knowing what was good and what was bad for her. She was no uneducated or un-sophisticated village girl but a senior college student who had probably all her life lived in a modern city and was thus far more capable of thinking for herself and acting on her own than perhaps an unlettered girl hailing from a rural area. The learned Judge of the High Court has referred to the decision in Abdul Sathar v. Emperor, 54 Mad. LJ 456 : (AIR 1928 Mad 585) in which it was held that where the evidence disclosed that, but for something which the accused consented to do and ultimately did, a minor girl would not have left her husband's house, or would not have been able to leave her husband's house, there was sufficient taking in law for the purpose of S. 363 and expressing agreement with this statement of the law observed: "In this case the minor, P.W. 4, would not have left the house but for the promise of the appellant that he would marry her." Quite apart from the question whether this amounts to blandishment we may point out that this is not based upon any evidence direct or otherwise. In 54 Mad LJ 456: (AIR 1928 Mad 585) Srinivasa Aiyangar J., found that the girl whom the accused was charged with having kidnapped was desperately anxious to leave her husband's house and even threatened to commit suicide if she was not taken away from there and observed: "If a girl should have been wound up to such a pitch of hatred of her husband and of his house or household and she is found afterwards to have gone out of the keeping of her husband, her guardian, there must undoubtedly be clear and cogent evidence to show that she did not leave her husband's house herself and that her leaving was in some manner caused or brought about by something that the accused did." In the light of this observation the learned Judge considered the evidence and came to the conclusion that there was some legal evidence upon which a court of fact could find against the accused. This decision, therefore, is of little assistance in this case because, as already stated, every essential step was taken by Savitri herself: it was she who telephoned to the appellant and fixed the rendezvous she walked up to that place herself and found the appellant waiting in the car; she got into the car of her own accord without the appellant asking her to step in and permitted the appellant to take her wherever he liked. Apparently, her one and only intention was to become the appellant's wife and thus be in a position to be always with him. 9. It must, however, be borne in mind that there is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of s. 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian." 10. The Hon'ble Gauhati High Court in the case of Mihir Das (supra) in Para 6, 7 and 8 observed--- "6. It may be noticed that the learned trial Court did not believe the story that the appellant forced her into the vehicle and gagged her while they were proceeding towards Kalirbazar where the main accused Pulak Das, the boy friend of the girl, embarked into the vehicle. In other words, learned trial Court believed that the girl had willingly boarded the vehicle and travelled with the appellant. The identity of the other young man who was inside the vehicle or of the driver has not been disclosed and so none of them could be booked in the present case. According to her statement, she was first taken to a house in Sonamura but the owner of the house or none of the inmates have been examined. On 11-12-1996, she was taken to a house in College tilla but none of that house inmates has been cited as witness. She complained that she was confined in a house at College tilla which was located in a thickly populated area. In all these places where she was kept, she has not disclosed anything about the conduct of Mihir Das or Pulak Das except that Pulak Das had approached her to marry him which she declined. No allegation has surfaced in her statement that Mihir Das had made any attempt to compel her to marry Pulak Das. She rather stated that Mihir was not with them when she and Pulak had gone to Bangladesh. There is no allegation of any physical or mental pressure by the appellant herein except the allegation that Pulak Das, the absconding accused, forced her to write some love letters in Bangladesh and some photographs to be taken there though this story has not been believed by the learned trial Court. There is no allegation of any physical or mental pressure by the appellant herein except the allegation that Pulak Das, the absconding accused, forced her to write some love letters in Bangladesh and some photographs to be taken there though this story has not been believed by the learned trial Court. A cursory glance over the photographs and plain reading of few love letters would give an unmistakable impression that she was deeply in love with the absconder. In such facts and circumstances the question which falls for consideration is at what point of time the alleged offence of kidnapping had started to take place and whether the appellant Mihir Das was responsible for the same. Section 361, IPC which defines kidnapping is quoted below for understanding the legal position more accurately. 361. Kidnapping from lawful guardianship-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. The most important question is when a minor can be said to have been taken out of the keeping of the lawful guardian in a given facts and circumstances of a case. The proved fact that has emerged from the recorded evidence is that the girl, aged more than 16, was in love with Pulak Das and the appellant Mihir being a neighbour was closely known to her. Ratan Chandra Sen (P.W. 4) is an independent witness who was waiting in front of Agriculture store at Kanchannagar. At about 1-30 p.m., he noticed a Maruti vehicle coming from western side when a young boy and another young girl coming from Kanchannagar direction boarded the vehicle which had sped away. This statement does not at all indicate that the appellant applied any force on her. There is no doubt that the young boy and girl were the appellant herein and the victim girl. Thus, she on her own consent had travelled with the appellant knowing fully well that she was going to meet her boy friend, Pulak Das. This statement does not at all indicate that the appellant applied any force on her. There is no doubt that the young boy and girl were the appellant herein and the victim girl. Thus, she on her own consent had travelled with the appellant knowing fully well that she was going to meet her boy friend, Pulak Das. If a minor girl travels with a closely known neighbour to meet her boyfriend, it cannot be said that it amounts to taking her out of the keeping of her lawful guardian. In my considered view, it cannot be said that at the time when she along with the appellant boarded into the vehicle and travelled towards Sonamura via Kalirbazar where Pulak Das had joined them, the offence of kidnapping did not take place. As has to be correctly appreciated, the kidnapping can be said to have taken place only when she was detained against her will for the purpose of pressurizing her to agree to the proposal of Pulak Das to many him. In her statement, nowhere she divulged that the appellant put pressure on her to marry Pulak Das or he was responsible for confining her in different places at Sonamura and College tilla, Agartala. On the contrary, she had stated that accused Pulak Das had taken her to Bangladesh where she stayed most of the period for about 20/22 days and the appellant was not with them there. Thus, it cannot be said that the moment when she was forced to remain out of the keeping of her guardian the appellant was with her and put pressure for detaining her in the places at Sonamura, Agartala and Bangladesh. Her allegation that she was forced to be photographed with the accused Pulak Das or write love letters to him has nothing to do with the appellant. 7. The simple fact that has surfaced from the above discussion is that the appellant being the close neighbour and a friend of absconding accused Pulak Das and the victim girl accompanied her in the vehicle for meeting Pulak who might have secret design to marry her by detaining her in certain places for a considerable period. 7. The simple fact that has surfaced from the above discussion is that the appellant being the close neighbour and a friend of absconding accused Pulak Das and the victim girl accompanied her in the vehicle for meeting Pulak who might have secret design to marry her by detaining her in certain places for a considerable period. Nothing is there on record to show that apart from helping her to proceed towards Sonamura for meeting her boy-friend, the appellant had any knowledge about the other design or motive of the absconder who later translated his design into action by forceful detention, as alleged by the prosecution. The conduct of the absconder as alleged, however, remains for closer scrutiny during trial against him and nothing said herein shall be taken as expression of any opinion about his conduct. 8. For the above reasons and discussions made above, the appellant cannot be said to be the guilty of kidnapping the victim and consequently, this appeal has merit for acceptance. The appeal is, therefore, allowed setting aside the conviction and sentence imposed by the judgment impugned herein. The appellant shall be set at liberty at once. The lower Court records should be transmitted forthwith with a direction to the learned trial Court to issue process for compelling appearance of the absconder to proceed against him in accordance with law. 11. In the fact of the present case, the alleged kidnapped girl Jayasree was no doubt a minor on the date of occurrence having her age 16 years 7 months as per School certificate. According to the materials collected by the police during investigation, she had love affairs with the accused for about one year. On the date of occurrence she insisted the accused to come with a vehicle near Hariananda School and accordingly the accused went there with a vehicle. She boarded the vehicle voluntarily even without being asked by the accused and thereafter went away with the accused. This fact leads to say that she had neither taken nor enticed by the accused. Since there is no such prima facie material, the learned Sessions Judge was not justified in directing to frame charge against the accused under Section 363 of IPC. Hence, the revisional application is allowed. 12. The order dated 25.08.2009 directing framing of charge against the accused is set aside. Since there is no such prima facie material, the learned Sessions Judge was not justified in directing to frame charge against the accused under Section 363 of IPC. Hence, the revisional application is allowed. 12. The order dated 25.08.2009 directing framing of charge against the accused is set aside. Since there is no material to frame charge under Section 363 of IPC, the accused is liable to be discharged and accordingly I do so. 13. The revisional application accordingly stands disposed of. 14. Send back the L.C. records along with a copy of this judgment.