JUDGMENT : The accused appellant, Shri Kartik Murari has preferred this Criminal Appeal against the judgment of conviction and sentence dated 10.07.2017 passed by the Court of learned Sessions Judge, Dibrugarh, in POCSO Case No. 11/2014, corresponding to G.R. Case No. 1100/2014 arising out of Naharkatiya Police Station Case No. 48/2014, wherein he has been convicted under Section 363 IPC and is sentenced to undergo Rigorous Imprisonment for a period of 7 (seven) years with a fine of Rs. 10,000/- and in default of payment of fine, to undergo Rigorous Imprisonment of 2 (two) years, with the observation that the period of detention already undergone by him during investigation and trial is set off with his custodial sentence. 2. The criminal case in hand was set in motion when the informant Sri Pradip Orang, PW-1 lodged an FIR on 01.05.2014 before the Naharkatiya Police Station stating that when his son Aakash Orang and minor daughter named X were returning home from shop at around 07:00 am on 30.04.2014, the accused Kartik Murari took his daughter victim X towards the oil rig and from then onwards, his said daughter did not return home and even after a thorough search she could not be traced out and later her body was recovered from Dihing river on 01.05.2014 around 01:30 pm. The said FIR was accordingly registered as Naharkatiya Police Station Case No. 48/2014 under Section 302 of the Indian Penal Code and the Sub Inspector of Police, G.K. Gogoi, PW 11 was entrusted with the investigation of the said case. 3. The concerned Investigating Officer of the case visited the place from where the body of the victim was recovered, made inquest on it, sent the dead body of X for its autopsy. The said Investigating Officer of the case recorded the statements of the witnesses acquainted with the incident, drawn the sketch map and after completion of the investigation, finding prima facie materials regarding his involvement in the said case, he vide No. 38/2014 dated 31.05.2014 submitted the charge sheet along with the medical records and other relevant documents in said Naharkatiya PS Case No. 48/2014 under Section 302 of the IPC read with Section 4 of the Protection of Children from Sexual Offence (POCSO) Act, 2012 against the accused appellant. 4. 4. The learned Trial Court on appearance of the accused, provided him with the documents and after hearing both the parties on 04.08.2014 framed charges under Section 4 of the POCSO Act, 2012, read with Section 302 IPC, which was read over and explained to him, to which the accused pleaded not guilty and claimed to be tried and accordingly, the trial of the Case began. 5. In order to bring home the charges, against the accused appellant, the prosecution examined 11 (eleven) witnesses on its behalf. The defence cross-examined the prosecution witnesses. The statement of the accused/appellant under Section 313 Cr.P.C. was recorded on 13.10.2015, where he denied all the allegations lodged against him and denied to adduce any Defence Evidence on his behalf. 6. The learned Sessions Judge, Dibrugarh upon appreciation of the evidences adduced by the prosecution and crossed by the defence, recorded the impugned judgment of conviction and sentence as noted above and hence, the present appeal. 7. The accused appellant was initially arrested in said Naharkatiya PS Case No. 48/2014 on 02.05.2014 and later on 22.09.2014 he was released on bail during the trial of the case. However, from the date of order of sentence dated 10.07.2017, the accused appellant is serving the sentence. 8. Heard Mr. S.K. Borkakati, learned counsel, for the accused appellant and Mr. P.S. lahkar, learned Public Prosecutor representing the State. 9. Mr. Borkakati, learned counsel for the appellant stated that there is no eye witness to the incident and it is mere allegation against the appellant. It is submitted that merely on suspicion; the appellant cannot be convicted, without there being any cogent evidence. He stated that it is proved that there was a cordial relationship between the accused and the family of the deceased for a long time and the prosecution failed to establish any intention or motive on the part of the accused for the alleged act. 10. Mr. Borkakati, learned counsel also submitted that the ‘last seen theory’ is also not applicable to convict the appellant due to the time gap, since the victim was seen with the accused in the previous morning, whereas the dead body of the victim was recovered during afternoon of the next day. 10. Mr. Borkakati, learned counsel also submitted that the ‘last seen theory’ is also not applicable to convict the appellant due to the time gap, since the victim was seen with the accused in the previous morning, whereas the dead body of the victim was recovered during afternoon of the next day. It is also submitted that the alleged extra judicial confession made by the appellant cannot be considered as it was proved during the trial that such statement was made by the appellant before police while he was in the police station. 11. Mr. Borkakati, learned counsel for the appellant also submitted that the Trial Court did not found the appellant guilty of the offences under Sections 366/376/302 IPC and Section 4 of the POCSO Act due to absence of any evidence in that regard and therefore, in the absence of any such evidence, the appellant has been illegally held to be guilty of offence under Section 363 IPC. Mr. Borkakati submitted that as there is no direct evidence and enough materials to prove and establish the guilt of the accused under the charged section and that the prosecution have failed to establish the guilt of the accused beyond reasonable doubt, therefore the impugned judgment of conviction and sentence against the accused appellant need to be set aside and quashed. 12. On the other hand Mr. Lahkar, learned Public Prosecutor supporting the judgment and order of conviction and sentence, submitted that prosecution has placed sufficient materials to prove the guilt of the accused. 13. In support of his argument Mr. Borkakati learned counsel for the appellant has placed reliance on the Judgments reported in (2002) 8 SCC 45 [Bodhraj Vs. State of J&K], AIR 2017 SC 2617 : (2018) 5 SCC 543 [Rakesh Birani Vs. Prem Narain Sehgal], 2010 (1) GLT 425 [Samir Bhowmik Vs. State of Tripura] and (2017) 2 NEJ 181 (Gau) [Jiten Nath and Another Vs. State of Assam and Others]. On the other side Mr. Lahkar, learned public prosecutor relied on the Judgment of the Hon’ble Supreme Court reported in AIR 2004 SC 4570 : (2004) 13 SCC 203 [Dani Singh Vs. State of Bihar]. Considered the submissions advanced by the learned counsels for both the parties and also perused the evidence on record adduced by both the parties, apart from the judgment of conviction recorded by the trial Court. State of Bihar]. Considered the submissions advanced by the learned counsels for both the parties and also perused the evidence on record adduced by both the parties, apart from the judgment of conviction recorded by the trial Court. Also considered the Judgments cited by the parties. 14. PW-10, Dr. Subhajyoti Deka, the autopsy doctor who conducted the post mortem of the deceased on 02.05.2014 in his evidence adduced that the deceased was a female of about 9 years old, daughter of Pradip Orang who was identified by her said father and the escorted Police personnel. He also deposed that during the post mortem examination, he found an average female dead body, wearing a full jacket, maxi, peeling of skin, face suffused swollen, body swollen, mouth closed, tongue protruded out and with the following injuries:- (i) Contusion of 8 cm x 6 cm over right chest above the nipple with underlined contusion and fracture of ribs 2, 3, 4, 5 & 6 in the mid clavicular line, reddish in colour; (ii) Contusion over the left chest 6 cm x 3 cm over the breast, underlined muscle contused, ribs fractured, 3, 4, 5 & 6 in mid clavicular line, reddish in colour; (iii) One contusion over the left tempo parietal region of 6 cm x 3cm size, reddish in colour. He also deposed that on examination of the said dead body he found– a. Scalp- Left temporal contusion and parietal contusion of 10 cm x 8 cm; b. Skull- Linear fissure fracture of 8 cm in length over tempo parietal reason: c. Vertebrae- healthy. d. Spinal Cord dissected. e. Brain and membrane were congested, oedematous with diffused bilateral subdural hemorrhage and sub arachnoids hemorrhage. f. Pleurae- lacerated body cavity filled with liquid blood app. 500 ml; g. Lungs pericardium and heart found congested; h. Stomach and contents found congested, filled with water and sand particulars app. 1 liter: i. Vagina found lacerated posteriorly 6 cm x 4 cm x 1 cm depth in 7 O’clock position. Injury found to be of recent and reddish in colour without any presence of spermatozoa and gonococci. 500 ml; g. Lungs pericardium and heart found congested; h. Stomach and contents found congested, filled with water and sand particulars app. 1 liter: i. Vagina found lacerated posteriorly 6 cm x 4 cm x 1 cm depth in 7 O’clock position. Injury found to be of recent and reddish in colour without any presence of spermatozoa and gonococci. The said PW 10, the autopsy doctor opined that the death of the deceased was due to the result of head injury as described, where all the injuries were ante mortem and caused by blunt force impact, which was homicidal in nature with the evidence of forceful vaginal penetration and time since death approximately of 48 - 56 hours. He also depose that the Injury No. 3 is a fractal injury and sufficient to cause dead of a person in the ordinary cause of nature. During his cross examination, said autopsy doctor stated that the dead body was at the early stage of decomposition and during post mortem he did not found injury mark on the mouth and neck of the deceased and specified that in the case in hand the head injury was not due to falling on the water body, but it could be by falling on hard substance like stone, bolder, etc. The said doctor ruled out accidental vaginal ruptures in the said case. The defence during cross-examination did not challenge the injuries found on the person of the deceased, its nature as well as the opinion of the doctor, noticed above. 15. The issue involved in this appeal is whether the appellant is the author of the crime in kidnapping the deceased victim X from her lawful guardianship or not? 16. In order to appreciate the arguments, advanced by the learned counsels appearing for both the parties and to examine the correctness of the impugned Judgment and Order of conviction and sentence, let me briefly scrutinize the evidence on record. 17. 16. In order to appreciate the arguments, advanced by the learned counsels appearing for both the parties and to examine the correctness of the impugned Judgment and Order of conviction and sentence, let me briefly scrutinize the evidence on record. 17. PW-1, Pradip Orang the informant and father of the victim deposed that his minor daughter aged about 9 years on 30.04.2014 around 10:00 AM went to a shop at Gethupather Chariali with his brother Akash Orang PW-3 and on their return to home the accused Kartik Murari called his said daughter and his son went back home and when the said PW-1 came back home in the evening after his work he came to know that his daughter the victim did not returned to her house after coming from the said shop and all of them went out in search of her but could not find her. The said PW-1 also deposed that on the next day 01.05.2014 while they were searching for the victim girl around 9 am in the morning, one boy namely Bablu Murari informed that a dead body is lying in the river Dihing situated nearby their house and when they went there in search of his missing daughter they found the said dead body to be of his daughter, floating in water by the side of the said river. He stated that Police was accordingly informed and on their arrival, around 1:00 PM on 01.05.2014, her dead body was picked up from the said river, which he identified as his missing daughter and then Police conducted the inquest over the dead body of the deceased and sent it to the Assam Medical College Hospital, Dibrugarh for postmortem and that on 01.05.2014 itself, he lodged the FIR at Naharkatiya Police Station. The said PW-1 further deposed that he suspects that the accused Kartik Murari had committed the murder of his daughter as it is he who had taken her with him on her way to home with his brother, by giving her a Pop, a bakery item. In his cross examination, said PW-1 deposed that accused used to visit his house regularly prior to the occurrence and that he did not see who took her daughter while returning home from the shop and it is his son Aakash Orang, PW-3 informed him that it is the accused who had taken his daughter. In his cross examination, said PW-1 deposed that accused used to visit his house regularly prior to the occurrence and that he did not see who took her daughter while returning home from the shop and it is his son Aakash Orang, PW-3 informed him that it is the accused who had taken his daughter. It is also stated by PW-1 in his cross that he did not state before Police that the accused took his daughter with him towards the river and murdered her and that he is an illiterate person and the FIR writer did not read over and explained the contents of the FIR of the case before taking his thumb impression and that he doesn’t know who had taken his daughter. 18. PW-2, Minu Orang, mother of the victim in her evidence deposed similar as that of PW-1, her husband and that she is also an hearsay witness to the incident as when she returned home around 5:00 PM from her place of work on 30.04.2014, it is her son Aakash, PW-3 told her that her daughter, the victim did not return home as on their way to home the accused Kartik took his daughter with him stating that after sometime he would bring her to their house and since then, the victim girl did not return to her house. In her cross examination, said PW-2 stated that she did not state before Police that the accused confessed his guilt. However, she reiterated that she went to the house of the accused along with her son Aakash in search of his missing daughter and met the accused in his house. 19. PW-3, Aakash Orang elder brother of the victim in his evidence deposed that he used to call the accused Kartik Murari as paternal uncle and on the date of the incident in the morning around 7:00 while he was returning home with his sister, the deceased victim, they met the accused on their way who asked him to leave his sister with the accused instructing him to return to his house and that accused took his sister. It is also stated by said PW-3 that though he returned home leaving his sister with the accused but as she did not return for a long time, he went in search of her in nearby places and when his mother, PW-2 arrived home he informed her about the same and then he along with his mother went to the house of the accused in search of his missing sister and on meeting him, the accused told them that his sister is not with him and did not meet her. It is on the next day of the day of occurrence (i.e. on 01.05.2014), the dead body of his sister was found in the river. In his cross examination, said PW-3 denied the suggestion that he did not state before Police that the accused person did not tell him that the accused would bring back his sister to their home and he instructed him to leave his sister with the accused. He further denied the suggestion that he did not state before Police that he along with his mother went to the house of the accused in search of his missing sister. During his cross examination by the defence the said PW-3 further stated that he doesn’t know who took his sister and killed her and at the time of occurrence he saw a vehicle near the shop where many persons were present and that when they were going to the shop a boy namely Babatu Naik was with them. 20. PW-4, Smt. Ritamoni Gogoi, a hearsay witness in her evidence deposed that she knows the accused person as co villager and that she heard from people of the village that a dead body of a minor girl was found in the river Burhidihing and that after committing rape on her, she was thrown in the said river. In her cross examination, PW-4 stated that she cannot say whether the victim was a minor or a major girl and she did not remember from whom she came to know about the said occurrence. 21. In her cross examination, PW-4 stated that she cannot say whether the victim was a minor or a major girl and she did not remember from whom she came to know about the said occurrence. 21. PW-5, Akash Jojo, in his evidence deposed that on the date of the incident, while the victim girl with her elder brother Aakash were going towards the shop, he was also going to it but he was behind them in his bicycle and after sometime he took Akash PW-3 on his bicycle and the victim was following them to the shop by walking. While coming back from the shop, on meeting her, all of them started walking to their house and on their way they met the accused Kartik, who stopped them and called the victim and he and Aakash PW-3 came back to their house on his bicycle leaving the victim with the accused and after dropping said Aakash in his house, he returned to his own house and only on the next day of the incident, he heard that the victim died. In his cross examination, he reiterated that along with the victim and her elder brother Aakash, he too went to the shop together with them. 22. PW-6, Smt. Junali Bhumij, is also a hearsay witness who was informed by the brother of the victim Aakash that his sister was murdered by the accused and that her dead body was found on the bank of the river. In her cross examination, by the defence she stated that it is Aakash Orang PW-3 came to their house and told that his sister was murdered by the accused and that she doesn’t have any personal knowledge about the incident. 23. In her cross examination, by the defence she stated that it is Aakash Orang PW-3 came to their house and told that his sister was murdered by the accused and that she doesn’t have any personal knowledge about the incident. 23. PW-7, Dilip Dey, an worker of a workshop, in his evidence adduced that one Ravi Dey informed him about the incident regarding the recovery of the dead body while he was on duty and later Police called him to the Police Station where he met the accused person of the case and when Police interrogated the accused in front of him as well as said Ravi Dey, the said accused stated that he sent the victim to bring chana and thereafter, both of them went to the nearby jungle where they had eaten the same and thereafter, the accused wanted to have sexual intercourse with the victim and during the said process when the victim tried to escape from him, the accused pressed her down in water of the field where she died and thereafter, the accused fled away from the place of occurrence and Police recorded his statement. In his cross examination, said PW-7 stated that when Police interrogated the accused, excepting him, Ravi Dey, the accused person and the Police personnel, there was no other person in the Police Station wherein the accused was in an open room but not in the lock-up and being the VDP Secretary, even at the time of said incident, he used to visit the Police Station frequently. 24. 24. PW-8, Rabi Dey, VDP President in his evidence stated that he knows both the accused as well as the deceased victim and around 8:00 a.m. in the morning the informant, the father of the victim, PW-1 came to his residence and told him that his daughter had drowned in water of river Burhidihing and accordingly he informed the same to the Police and when Police came to their village, he accompanied them to the place of occurrence and the dead body of the deceased was taken out from water of the river in front of Police, then the younger brother of the deceased told Police that - in the morning hour, when he with his sister, the said deceased, had gone to the shop to purchase articles, they met the accused in the said shop and thereafter, the accused sent him back to home and took the deceased, his said sister towards the river side. He also deposed that on recovery of the body, Police brought the dead body to the Police Station and on the next day, when the accused appeared before Police, he was called to the Naharkatiya Police Station and there in the Police Station, the OC asked him to enquire the incident from the accused. When he enquired in front of the Police personnel, the accused confessed that he had taken the victim to the river side and tried to commit rape on her and when the victim shouted then the accused caught hold of her from backside kicked her with his knee and as a result she died and that Police recorded his said statement. In his cross examination, said PW-8 stated that when he reached Police Station, he found the accused in the lock-up and the OC asked him to interrogate the accused about the occurrence of the incident and when he asked the accused about the same, the accused confessed the incident before them in presence of Police personnel. He further deposed that when he made such inquiry to the accused in the Police Station, it was only the accused, PW- 7 and Police personnel along with him were present. 25. He further deposed that when he made such inquiry to the accused in the Police Station, it was only the accused, PW- 7 and Police personnel along with him were present. 25. PW-9, Rupak Dev, a businessman by profession in his evidence adduced that he has a shop near Naharkatiya Police Station and on the next day of the occurrence the informant PW-1, father of the victim came to him in his shop narrated the incident and told him that the accused murdered his daughter after committing rape on her and then threw her dead body in the river and on the request of said PW-1, he wrote the FIR of the case, took the thumb impression of the informant PW-1 and also put his signature as a FIR writer and they lodged the FIR where Police recorded his statement. In his cross evidence, he stated that though he knew the victim and the accused, but he doesn’t have personal knowledge about the said occurrence and narrated the said incident in the FIR as told to him by the informant PW-1. 26. PW-11, Ghana Kanta Gogoi, Sub-Inspector of Police who conducted the investigation of the case in his evidence deposed that he recorded the statement of the informant and other witnesses of the case under Section 161 Cr.P.C. and on 02.05.2014 in the evening, the accused appeared before the Naharkatiya Police Station where he interrogated him and finding materials against him arrested him who confessed his guilt in presence of the witnesses Rabi Dey, Dilip Dey and Rupak Dey and that the statement of those witnesses were also recorded. He also stated that after collecting the post mortem report of the deceased and finding sufficient prima-facie material, he came to understand that the deceased was killed after committing rape upon her, and accordingly filed the charge sheet in the case against the accused under Section 302 IPC read with Section 4 of the POCSO Act. He also stated that after collecting the post mortem report of the deceased and finding sufficient prima-facie material, he came to understand that the deceased was killed after committing rape upon her, and accordingly filed the charge sheet in the case against the accused under Section 302 IPC read with Section 4 of the POCSO Act. In his said evidence, the said I.O. stated that the informant PW-1 did not state before him that the FIR writer PW-9 read over the contents of the FIR and explained the same to the informant but, at the same time, he denied the suggestion that the FIR was not written as per instruction of the informant and further stated that the age of the deceased was 9 years at the time of her death, but he did not collect Birth Certificate, School Certificate or Medical Certificate with regard to the age of the deceased. He also stated that though the accused was sent to the Medical and Health Officer Naharkatiya for his examination but he was not sent to the AMCH, Dibrugarh to determine whether the accused was able to commit any sexual act or not and during his investigation, he did not find any eye witness to the occurrence of the incident to prove that the accused had committed the crime. The said I.O. in his cross examination, stated that the PW-2 mother of the victim, neither stated that the accused confessed before her as well as the others that he killed the victim nor she stated that she went to the house of the accused with her son PW-3 in search of her missing daughter and that they met the accused in his house. The said I.O. during his cross examination, also stated that the PW-3, Aakash Orang, the brother of the deceased did not state before him that the accused told him that he shall drop his sister in her house and that he instructed him to leave her with him and also not stated that he along with his mother PW-2 went to the house of the accused in search of his missing sister. 27. 27. On the basis of material available on record the learned Trial Court, for the ends of justice and in exercise of his power under Section 216 Cr.P.C. framed an additional charge under Section 366 IPC against the appellant herein holding that the same also covers the ingredients of Section 363 IPC and accordingly passed the order dated 03.03.2016 in said POCSO Case No. 11/2014 allowing both the prosecution and the defence to submit their application for recalling of witnesses, if so advised. On the basis of application praying on behalf of the accused person of the case praying for recalling the witnesses for further cross-examination pursuant to framing additional charge under Sections 366/363 IPC, the learned Trial Judge by its order dated 28.03.2016 passed in said POCSO Case No. 11/2014 recalled the prosecution witnesses PW No. 3, Aakash Orang, PW No. 5, Aakash Jojo and PW No. 8, Rabi Dey. 28. In terms of the order of the Trial Court, PW-3, Aakash Orang brother of the deceased, PW-5, Aakash Jojo and PW-8, Ravi Dey, the VDP President and PW.11, I.O. of the case were further cross-examined. During such further cross-examination, PW-3 stated that he left his sister with the accused and left for his home and on being enquired by the Court said PW-3 stated that he left his sister with the accused and he saw that the said accused took his sister to a little distance. On further cross-examination of the PW-5, he stated that he and the PW-3 left the deceased near the shop where there are few residences. In his further cross examination, the PW-8 the VDP President stated that he did not see the accused taking the deceased and he cannot say whether the PW-3 brother of the deceased told the Police about the accused taking away the deceased truthfully or otherwise. 29. Due to non availability of the proforma of framing charge under Sections 366/363 IPC in the file that was framed by order dated 03.03.2016 passed earlier in the case, as such by order dated 10.07.2017 a new proforma of framing charge under Sections 366/363 IPC was filled up and kept in the case record. 30. Later in terms of the Order of the Trial Court, PW-11, the investigating officer of the case was further cross-examined on behalf of the accused. 30. Later in terms of the Order of the Trial Court, PW-11, the investigating officer of the case was further cross-examined on behalf of the accused. In his further cross-examination of the PW-11, the investigating officer of the case, stated that he did not examine the shopkeeper to ascertain as to whether the PW-3, PW-5 and the deceased went to his shop or not nor he recorded the statement of the other shopkeepers. The said I.O. in his further cross examination also stated that the PW-3 did not state before him that the accused told him that he shall drop his sister in his house and that he instructed him to leave her with him and that, during investigation as he did not find any ingredients of kidnapping, as such he did not pray before the Court to add Sections 366 and 363 IPC. 31. After recording the statement of the prosecution witnesses, the learned Trial Judge recorded the statement of the accused under Section 313 Cr.P.C. on 13.10.2015 and 10.10.2017 and made the quarries point wise including the statement made by PW-1, PW-2, PW-3, PW-5, PW-6, PW-8, PW- 9 and the autopsy doctor PW-10 and the accused replied in negative to all those quarries and refused to give any defence evidence and stated that he is innocent and that he does not know why the case was lodged against him. 32. Section 361 IPC relates to ‘Kidnapping from lawful guardianship’ and it reads as – “361. Kidnapping from lawful guardianship – Whoever takes or entices any minor under 1[sixteen] years of age if a male, or under 2[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. Explanation:- The words "lawful guardian" in this section include any person lawfully entrusted with the care of custody of such minor or other person. Exception:- This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.” 33. Exception:- This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.” 33. Section 363 IPC relates to ‘Punishment for kidnapping and it reads as – “363. Punishment for kidnapping – Whoever kidnaps any person from 1[India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” 34. To bring home an offence under Section 363 IPC, it is settled that the prosecution is to establish (a) the accused conveyed the victim beyond the limits of India; (b) that the said removal was without the consent of the victim or of any person legally authorised to consent removal OR (a) the accused has either taken or enticed away, excepting voluntary accompaniment, a minor; (b) the said minor if a male was under 16 years of age or if a female was under 18 years of age on the date of taking or enticing; (c) that the said taking or enticing has been made out of the keeping of a lawful guardian or a de facto guardian lawfully entrusted with the keeping of the minor, without the consent of such guardian OR (a) the accused has either takes or enticed away a person of unsound mind; (b) this taking or enticing has been made out of the keeping of lawful guardian or de fecto guardian lawfully entrusted with the keeping of the person of unsound mind; (c) that this removal of person of unsound mind has been effected without the consent of such guardian. 35. On proper scrutiny of the evidence on record, it is seen from the deposition of PW-1 and PW-2 that in the evening of 30.04.2014, when they returned from their place of work, it is PW-3, Aakash Orang, brother of the deceased victim informed his father, the PW-1, Pradip Orang, the informant of the case as well as his mother, the PW-2, Smti. Minu Orang that in the morning when he (the PW-3) and the victim were returning home from the shop, the accused took the victim with him and since then she did not return. Minu Orang that in the morning when he (the PW-3) and the victim were returning home from the shop, the accused took the victim with him and since then she did not return. This piece of evidence, not being confronted by the defence, remained intact. 36. It is also seen from the evidence on record that during his further cross-examination made on behalf of the accused, though the PW-8, Rabi Dey, the VDP President stated that he cannot say whether, Aakash Orang (PW-3) told the police about the accused taking away the deceased truthfully or otherwise, but the evidence of said PW-8 that – when Police came to their village, he accompanied them to the place of occurrence and the dead body of the deceased was taken out from water of the river in front of Police, then the younger brother of the deceased told Police that - in the morning hour, when he with his sister, the said deceased, had gone to the shop to purchase articles, they met the accused in the said shop and thereafter, the accused sent him back to home and took the deceased, his said sister towards the river side remained untouched and could not be shattered by the defence. The said evidence of Aakash Orang, PW-3, brother of the deceased that while he and his sister, the deceased, were returning home from the shop in the morning on 30.04.2014, the accused took the victim has been corroborated not only by the evidence of PWs -1 & 2, parents of PW-3 but also by said PW-8, Rabi Dey, an independent witness. 37. Records of the case disclosed that the victim was taken away by the accused in the morning of 30.04.2014, she did not return home on that day and her body was found floating in the Burhi Dihing river on the next morning around 9:00 am of 01.05.2014 and the post mortem of said dead body was conducted on 02.05.2014 at 01:30 pm and the post mortem report dated 02.05.2014 (Exhibit-3) of the deceased reveals that she was about 9 (nine) years old and the time since her death was approximately about 48 to 56 hours. 38. The deceased was a minor of about 9 (nine) years old. 38. The deceased was a minor of about 9 (nine) years old. It is seen from Section 361 IPC defining kidnapping from lawful guardianship where taking or enticing are the main ingredients on which rests the entire definition of kidnapping from lawful guardianship. In the present case evidence showed that the victim X was a minor girl of nine years old and she was taken away by the accused from her lawful guardianship, i.e. Pws -1 and 2, father and mother respectively. 39. From the above, this Court is of the view that the prosecution by adducing evidence could prove the charge of kidnapping the deceased victim X, a minor girl by the accused appellant from her lawful guardianship beyond reasonable doubt. Since the conclusion drawn from the circumstances of the case as noted above fully establishes the guilt of the accused, i.e. the appellant herein, therefore, this Court holds that the offence under Section 363 IPC against the appellant herein stands proved beyond doubt. As such, this Court does not find any infirmity in the impugned judgment and order dated 10.07.2017, passed by the learned Sessions Judge, Dibrugarh. 40. This appeal, accordingly, fails and is dismissed. 41. Registry shall return the LCR along with a copy of this judgment and order.