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2020 DIGILAW 109 (TRI)

Sujit Datta v. State of Tripura

2020-09-16

S.G.CHATTOPADHYAY, S.TALAPATRA

body2020
JUDGMENT : S. Talapatra, J. 1. This is an appeal under Section 374(2) of the CrPC from the judgment and order dated 06.09.2018 delivered in case No. ST(STB)04 of 2016 by the Asst. Sessions Judge, South Tripura, Belonia. By the said judgment, the appellant has been convicted for committing offence punishable under Section 366 of the IPC. Pursuant to the said conviction, by the order dated 06.09.2018, the appellant has been sentenced to suffer rigorous imprisonment for 10(ten) years and to pay fine of Rs. 50,000/- with default stipulation. It has been also observed by the said order dated 06.09.2018 that in the event of non-payment of fine, the default imprisonment shall run consecutively to the substantive imprisonment. 2. On the basis of the complaint filed by one Sanjit Singha (PW-1) to the Officer-in-Charge, Belonia Police Station (Exbt. -1) revealing that his daughter (the name withheld for protecting the identity of the victim) aged about 13 years went out of his house at 6 am on the day of occurrence i.e. 02.08.2014 for going to private tutor's house. She was expected to return at home at 8.30 am, but she did not return to the house as expected. A rigorous search for finding out her was carried out. When the informant met the private tutor, he told that his daughter did not come to his house for tuition. At around 1.30 pm, the informant's wife had received a telephone call on her mobile phone. It was a call from his daughter. She had informed that the appellant had kidnapped her and she had been lodged at Agartala. The informant revealed the phone number in the complaint. But subsequent attempts to contact the victim over the said phone number turned futile as the mobile phone was found switched off. The appellant, according to the informant, used to work as a mason residing in the same village as a tenant. The villagers had also grievance against him and requested the owner of the house where the appellant was tenant, to evict him. 10-12 days preceding the occurrence, the appellant threatened that he would kidnap his daughter. Based on the said information filed on 02.08.2014 Belonia PS case No. 197/14 under Section 366A of the IPC was registered and taken up for investigation. 3. 10-12 days preceding the occurrence, the appellant threatened that he would kidnap his daughter. Based on the said information filed on 02.08.2014 Belonia PS case No. 197/14 under Section 366A of the IPC was registered and taken up for investigation. 3. On completion of investigation the final police report bearing the charge sheet No. 164/2014 dated 30.09.2014 was filed and having taken cognizance, since the offence is exclusively triable by the court of sessions, the police papers were committed to the court of the Sessions Judge, South Tripura, Belonia. However, the case was transferred in the midst of trial to the court of the Asst. Sessions Judge, South Tripura, Belonia for bringing the trial to its logical end. Prior to transfer of the said case, the charge was framed on 23.03.2016. The Sessions Judge framed the charge against the appellant under Section 366 of the IPC. Even the Sessions Judge had recorded depositions of all the PWs, but by the order dated 03.04.2018, the said trial was transferred to the court of the Asst. Sessions Judge, as stated, inasmuch as the trial was stuck up for non-production of the accused. 4. It is surprising that the trial judge who had recorded the evidence had transferred a case at the stage of examination of the accused under Section 313 (1)(b) of the CrPC. It cannot be treated as good practices, unless necessity of recusal is brought on the records. In the record, no reason is placed for transfer. Be that as it may, when the case was transferred to the court of the Asst. Sessions Judge, South Tripura, Belonia, the accused, the appellant herein, was produced before the court on 14.08.2018 after a long delay and his prayer for bail was rejected as he had flouted the conditions of the bail as granted by the court of Sessions Judge earlier. Keeping the appellant in the custody, his examination under Section 313(1)(b) of the CrPC was to have carried his response on the incriminating materials which might probably be used against him. On 06.09.2018, having heard the counsel for the parties at length, the judgment of conviction was returned by the Asst. sessions Judge, hereinafter referred to as the trial judge. 5. On 06.09.2018, having heard the counsel for the parties at length, the judgment of conviction was returned by the Asst. sessions Judge, hereinafter referred to as the trial judge. 5. From the record, it has surfaced that as the appellant has denied the charge and claimed his innocence, the prosecution, in order to substantiate the charge, adduced as many as 13 witnesses including the victim (PW-6) and the informant (PW-1). That apart, the prosecution had admitted 10 documentary evidence (Exbts-1 to 10) including the statement of the victim as recorded under Section 164(5) of the CrPC (Exbt. -4 series).One material object was placed in the evidence being Exbt. -MO. 1 (the birth certificate of the victim). 6. Having appreciated the evidence, the trial judge returned the finding of conviction on observing that there is no reason to disbelieve the testimonies of the prosecution witnesses. Testimonies of prosecution witnesses remained un-impeached and as such no further corroboration was required. According to the trial judge, the appellant had kidnapped the victim with intent to marry her. It has been thus held that the charge has been proved beyond reasonable doubt against the appellant. 7. Mr. R.G. Chakraborty, learned counsel appearing for the appellant has criticized the said judgment of conviction on the ground that the judgment has generally defied the canons of appreciating the evidence. There is no legal evidence to constitute the offence under Section 366 of the IPC and for its commission by the appellant. The trial judge has relied on versions as improved in the trial by PWs 6 and 9 and landed up in the perverse finding as returned by the judgment under challenge. 8. According to Mr. Chakraborty, learned counsel the prosecution has heavily relied on the evidence of PWs-1, 2, 3, 4, 6, 8, 9, and 10. That apart, there is no other evidence in order to establish that the appellant had indulged in any illicit act during the purported custody of the girl. Mr. Chakraborty, learned counsel appearing for the appellant has quite emphatically submitted that even though the principal allegation against the appellant is kidnapping of the victim in order to compel her to marry him but from scrutiny of the evidence, it would be apparent that there is no legal proof that the victim was compelled in any manner to marry him or was seduced to illicit intercourse. Thus, Mr. Thus, Mr. Chakraborty, learned counsel has submitted that conviction under Section 366 of the IPC is bad in law. 9. Having referred to the evidence of PW-6 (the victim) Mr. Chakraborty learned counsel has submitted that even though it has been stated that 10-12 days prior to the occurrence, there had been threat from the appellant of kidnapping the victim but the said incident was neither reported to the police or to any person of the neighbourhood. Mr. Chakraborty, learned counsel has submitted that even the story of kidnapping at 6 am from a thickly populated area is a piece of bewilderment. According to Mr. Chakraborty, learned counsel it is apparent that the victim did not raise alarm. Not only that the victim has testified in the trial that she went from one place to another on foot and slept at night in a house, but she did not raise her voice. It has been underlined that the victim (PW-6), her father (PW-1), her mother (PW-9) and her grandmother (PW-2) did not raise allegation of rape against the appellant. Both the appellant and the victim have grown up young. Thus, the allegation of kidnapping in order to marry the victim could not be established by the prosecution. The story is completely fabricated. 10. Finally, Mr. Chakraborty, learned counsel has submitted that the age of the victim girl has not been proved inasmuch as mother and father of the victim girl did not utter a single word regarding her age or her date of birth. The birth certificate (Exbt. MO. 1), according to Mr. Chakraborty, learned counsel cannot be treated as the proof of age. Its content has not been proved in accordance with law. Therefore, determination of the age by virtue of the birth certificate is fraught with illegality. Mr. Chakraborty, learned counsel has stated that the appellant deserves acquittal from the charge. 11. To buttress his submission, Mr. Chakraborty has relied on a few decisions. In Chote Lal and Another vs. State of Haryana reported in (1979) 4 SCC 336 the apex court had occasion to hold that merely recording of the finding of abduction to prove the charge under Section 366 of the IPC is not sufficient, inasmuch it is absolutely necessary to find that abduction of the woman committed for the purposes as mentioned in Section 366. If those purposes are not proved or in absence of finding in this regard, the charge under section 366 of the IPC is destined to fall through. 12. Another decision of the apex court in Shyam and another vs. State of Maharashtra reported in AIR 1995 SC 2169 has been pressed for services. In Shyam (supra), the apex court has occasion to observe that in absence of evidence that the prosecutrix put struggle or tried to raise alarm, she would be treated as the willing party to go with the accused of her own. The relevant part is extracted below: "3.Normally, her statement in that regard would be difficult to dislodge, but having regard to her conduct, as also the manner of the so-called "taking", it does not seem that the prosecutrix was truthful in that regard. In the first place, it is too much of a coincidence that the prosecutrix on her visit to a common tap, catering to many, would be found alone, or that her whereabouts would be under check by both the appellants/accused and that they would emerge at the scene abruptly to commit the offence of kidnapping by " "taking" her out of the lawful guardianship of her mother. Secondly, it is difficult to believe that to the strata of society to which the parties belong, they would have gone unnoticed while proceeding to the house of that other. The prosecutrix cannot be said to have been tied to the bicycle as if a load while sitting on the carrier thereof. She could have easily jumped off. She was a fully grown up girl may be one who had yet not touched 18 years of age, but, still she was in the age of discretion, sensible and aware of the intention of the accused Shyam, That he was taking her away for a purpose. It was not unknown to her with whom she was going in view of his earlier proposal. It was expected of her then to jump down from the bicycle, or put up a struggle and, in any case, raise an alarm to protect herself. No such steps were taken by her. It seems she was a willing party to go with Shyam the appellant on her own and in that sense there was no "taking" out of the guardianship of her mother. No such steps were taken by her. It seems she was a willing party to go with Shyam the appellant on her own and in that sense there was no "taking" out of the guardianship of her mother. The culpability of neither Shyam, A-1 nor that of Suresh, A-2, in these circumstances, appears to us established. The charge against the appellants/accused under Section 366, I.P.C. would thus fail." 13. In Mihir Das vs. State of Tripura reported in 2006 CRI. L.J. 1500, the Gauhati High Court had occasion to observe that when the victim was aware that she traveled to meet her 'boyfriend', it cannot be said that it amounts to taking her out of the keeping of her lawful guardian. 'Kidnapping' can be said to have taken place only when she was detained against her will for purpose of pressurising her to agree to marry the accused. In that case, the victim had nowhere stated that she was put under pressure to marry the accused or the accused was responsible for confining her in different places. As the victim proceeded with the accused on her own, the Gauhati High Court inferred with the judgment of conviction. 14. Another decision of Gauhati High Court in Hajarat Ali vs. State of Assam reported in (2004) 3 GLR 503, has been referred. In that case, the Gauhati High Court had occasion to observe having regard to Shyam (supra) as follows: "7. From a close scrutiny of the deposition of the witness above mentioned, especially, the prosecutrix, P.W. 3, it appears that though 20/25 families were residing within the neighbourhood of her house when she was taken in a bicycle, she did not resist such action of the appellant and without making any hue and cry or raising any alarm, she proceeded in the bi-cycle with the appellant. That apart, during her entire stay of one and half month with the appellant, she herself admitted that she had the occasion to meet many people but she did not utter anything about all those incident before the people she had come across. More surprising fact is that when the entire episode took place at Tezpur, Kalakuchi and Rangapara, P.W. 3, suddenly shifted the venue to Mangaldoi and even she was silent at the time of court marriage which was solemnized at Mangaldoi. More surprising fact is that when the entire episode took place at Tezpur, Kalakuchi and Rangapara, P.W. 3, suddenly shifted the venue to Mangaldoi and even she was silent at the time of court marriage which was solemnized at Mangaldoi. In the view of the matter, this Court is of the view that the evidence of P.W. 2 cannot be accepted as trustworthy and reliable and she was appearing to be willing party to go with the appellant on her own. It also appears that the prosecutrix was found to be below 18 years as per ossification test with the variation of one year of age on either side. Hence on the basis of such evidence, the impugned conviction of the appellant cannot be sustained. 8. The Apex Court, in Shyam and Anr. v. State of Maharashtra reported in AIR 1995 SC 2169 , in dealing with a case of identical nature, acquitted the accused who was convicted under Section 366 IPC. In the said case, the Apex Court held that the prosecutrix though below the age of 18 years, being a fully grown up girl, did not put up any struggle or raised alarm when she was taken away in a bicycle. Keeping in view the Shyam's case (supra), it appears that the case at hand is squarely covered by the ratio of the said case. Having regard to the Shyam's case (supra) and upon hearing learned counsel for the parties and also on perusal of the materials on record, the impugned conviction and sentence of the petitioner is hereby set aside and quashed. It is stated at the bar that the petitioner has all along been on bail and such the bail bond so furnished by him shall stand discharged." 15. Mr. S. Ghosh, learned Addl. PP appearing for the state has at the beginning submitted that the case projected by Mr. Chakraborty learned counsel for the appellant is contrary to what is borne in the records. The case that has been well proved by the prosecution is clearly distinguishable from the circumstances which led to the observations favouring the accused in the reports relied by the appellant. In the present case, the victim was about 13 years of age on the day of occurrence. While she had gone out of home and reached a place nearby Kalibari, an auto-rickshaw stopped behind her. In the present case, the victim was about 13 years of age on the day of occurrence. While she had gone out of home and reached a place nearby Kalibari, an auto-rickshaw stopped behind her. The appellant got down from the auto-rickshaw and asked her to get into the auto-rickshaw on the face of threat "if I do not get into auto he will kill me." Thereafter as stated by the victim, the appellant "forcefully lifted me and kidnapped by the auto and took me at Baikhora in the house of Ratan Das. In the noon time, Biswajit Das came with conch, bangle and vermillion. Biswajit Das forcefully pushed the bangle on my hand and Sujit gave vermilion on my forehead." After that in the afternoon, according to the victim's recount that she came out from that house and Sujit (the appellant) forcefully took her back in that house at Baikhora and arranged her sleeping with his aunt. On the following morning, she was again taken to the house of Dilip Das wherefrom the police rescued her. 16. In the cross examination, the victim has further stated that she could not cry out, out of fear. She has also admitted as clearly pointed by Mr. Ghosh that she did not tell that Sujit Datta put vermillion on her forehead, or that the police rescued her from Baikhora being accompanied by her parents. Mr. Ghosh, learned Addl. PP has drawn our attention to the statement as voluntarily made by the victim in the cross-examination which reads as follows: "Before getting into the vehicle Sujit cautioned me that if I raised any alarm he would kill me." 17. The victim had denied the suggestions contrary to what she had stated in the examination in chief very clearly. Mr. Ghosh, learned Addl. PP has stated that PW-7 is the witness of seizure of conch-bangle, pallar and vermillion in a small container (Exbt. MO. (ii) series) and he has identified his signature in the seizure list (Exbt. 3/1). PW-8, according to Mr. Ghosh, has corroborated the statement of the victim that she was recovered from the house of Dilip Das. The said witness has also asserted that he heard that the appellant had kidnapped the girl for purpose of marrying her. PW-9, the mother of the victim, has also corroborated the seizure of conch, bangle, vermillion etc. (Exbt. -MO. (ii) series). Ghosh, has corroborated the statement of the victim that she was recovered from the house of Dilip Das. The said witness has also asserted that he heard that the appellant had kidnapped the girl for purpose of marrying her. PW-9, the mother of the victim, has also corroborated the seizure of conch, bangle, vermillion etc. (Exbt. -MO. (ii) series). She has made a categorical statement that she found her daughter (the victim) was wearing conch, bangle, pallar and vermillion on her forehead and being asked, her daughter told her that one Biswajit Das pushed to force wear the conch-bangle and pallar and the appellant put the vermillion on the forehead on her daughter. On the aspect of age of the victim, Mr. Ghosh learned Addl. PP has submitted that the certificate of birth which had been seized from the custody of PW-1 (Exbt. -2) is a reliable evidence inasmuch as it is a statutory certificate, issued by the public servant and it has clearly established the age of the victim on the day of occurrence. She was around 13 years. 18. Mr. Ghosh, learned Addl. PP has also pointed out that in the complaint PW-1 had clearly stated that the age of his daughter was 13 years. There had been no cross-examination on that aspect of the matter by the defence. The seizure of a pair of conch-bangle and one small container of vermillion has been proved by PW-13 also. According to PW-13, Biswajit Das is the brother in law of the appellant who had brought the conch-bangle and vermillion. The charge sheet was filed against Sujit Das, but as it appears from the judgment that no charge was framed against him. But according to Mr. Ghosh, the said discharge cannot disturb the evidence of the witnesses in respect of deplorable act of presenting the victim as the married wife of the appellant. 19. In order to appreciate the grounds raised in this appeal, it would be apposite to make a short and meaningful survey of the evidence as recorded in the trial. It may be noted that at the instance of the appellant no evidence has been laid in the records. Therefore, whatever the defence case, as minimally projected, can only be gathered from the cross examination. 20. PW-1, Sri Sanjit Singha is the informant who lodged the complaint on 02.08.2014. It may be noted that at the instance of the appellant no evidence has been laid in the records. Therefore, whatever the defence case, as minimally projected, can only be gathered from the cross examination. 20. PW-1, Sri Sanjit Singha is the informant who lodged the complaint on 02.08.2014. He has testified in the trial that his daughter, the victim, left home at about 6 am for attending her private tuition, but she did not return home at the expected time. As a result, they carried out search for finding her out. During the search, the private tutor informed them, the victim did not come to his house. In the afternoon, at about 1.30 pm her daughter informed his wife over mobile phone that she had been kidnapped by Sujit Datta. In that background, PW-1 had filed the complainant (Exbt. -1). On the following day the police recovered her daughter from a house of Santirbazar. After recovery, her daughter told him that while she was going to the private tutor, the appellant took her 'by a bike'. He has identified the seizure list by which the birth certificate of the victim (Exbt. MO (i)) was seized. During the cross-examination, he has admitted that there are about 50 houses between his house and the house of the private tutor. Nobody of his village informed him about the incident of kidnapping. He has denied the suggestion that the victim never told him the she was kidnapped by the appellant on 02.08.2014. 21. PW-2, Smt. Gita Singha is the mother of PW-1. She is a hearsay witness. She is also the witness of the seizure of the birth certificate by the seizure list (Exbt. 2). 22. PW-3, Smt. Abha Saha, has testified in the trial that the appellant was tenant in their house. She has also stated in the trial that one day Puja Singha (PW-9) told her the appellant had proposed to the victim (her daughter). Puja requested her to caution the appellant in this regard. Accordingly, she had cautioned him. Thereafter, the appellant had left her house. One day when she went to the house of Puja, she told her that the appellant had kidnapped her daughter. 23. PW-4, Sri Haradhan Bhaumik @ Haru, is the private tutor. Puja requested her to caution the appellant in this regard. Accordingly, she had cautioned him. Thereafter, the appellant had left her house. One day when she went to the house of Puja, she told her that the appellant had kidnapped her daughter. 23. PW-4, Sri Haradhan Bhaumik @ Haru, is the private tutor. He had corroborated the fact that one day, the mother of the victim came to his house and asked whether the victim had come to his house for tuition. He had informed that the victim did not turn up for tuition on that day. PW-4 has stated in the cross-examination that no student had informed him about the kidnapping. 24. PW-5, Sri Subrata Majumder was another witness to the seizure of the birth certificate by the seizure list (Exbt. -2). 25. PW-6 is a sterling witness of the prosecution case, being the victim. She has stated that on 02.08.2014 at about 6 am, the incident took place. She was proceeding towards her tutor's house. At that time one auto-rickshaw came and stopped behind her. The appellant got down from the auto-rickshaw and asked her to get into the auto. The appellant also threatened her if she did not get into the auto, he would kill her. Thereafter. the victim (PW-6) has stated that follows: "He forcefully lifted me and kidnapped me by the auto and took me at Baikhora in the house of Ratan Das. In the noon time, Biswajit Das came with conch bangle and vermillion. Biswajit Das forcefully pushed the bangle on my hand and Sujit gave me vermillion on my forehead. In the afternoon, I came out from that house and Sujit again forcefully took me in another house at Baikhora and also arranged my sleeping with his aunt. On the following day morning I was taken in the house of Dilip Das from where police and my parents rescued me." The victim had identified the appellant and her signature (Exbt. -4 series). She has categorically stated that her date of birth is 10.12.2001 as per the birth certificate. 26. In the cross-examination, she has admitted that there were five houses around the place of occurrence. She did not see the registration number of the auto-rickshaw. Even, she could not give description of the driver of the auto. -4 series). She has categorically stated that her date of birth is 10.12.2001 as per the birth certificate. 26. In the cross-examination, she has admitted that there were five houses around the place of occurrence. She did not see the registration number of the auto-rickshaw. Even, she could not give description of the driver of the auto. She was taken to the various houses on foot but she did not cry out, out of fear. She has denied that she was not kidnapped by the appellant on 02.08.2014. She had tried to escape from the first house and walked a considerable distance for about 10 minutes, but along the road there was no house. But, she has admitted that she did not state in her statement as recorded under Section 164(5) of the CrPC that the appellant put vermillion on her forehead. She did not state to the magistrate that the police had rescued her from Baikhora along with her parents. She has admitted that on the following day, she was again taken away by a passenger vehicle from the house of Dilip Das. There were many passengers in the vehicle. She did not raise any alarm at any time when she was being taken from this place to that place. The victim has voluntarily stated in the cross-examination that before getting into the vehicle the appellant cautioned her if she raised any alarm he would kill her. The appellant, however, did not have any arms with him. She has denied the suggestions that the appellant did not put vermillion on her forehead. 27. PW-7, Sri Bimal Majumder, a constable from Belonai PS, was the seizure witness of conch-bangle, pallar and vermilion container (Exbt. MO. 2 series). He admitted the seizure. 28. PW-8, Sri Sajib Dutta has stated that when the victim was recovered from the house of Dilip Das, he was present there. He heard that the appellant had kidnapped the girl for purpose of marrying her but did not disclose the name of the person from whom he heard that incident. The cross-examination of PW-8 is of no relevance. 29. PW-9, Smt. Puja Nandi Singha is mother of the victim. She has testified in the trial that the incident took place on 02.08.2014 in the morning. The cross-examination of PW-8 is of no relevance. 29. PW-9, Smt. Puja Nandi Singha is mother of the victim. She has testified in the trial that the incident took place on 02.08.2014 in the morning. Before 12-13 days preceding to the occurrence, once her daughter told her that the appellant had obstructed her on the road and gave her proposal of love but she had refused him. At that time, the appellant told her that one day he would kidnap her. After hearing the said incident, she had gone to the house of the appellant, where he was staying as the tenant. She requested the landlady, Smt. Abha Saha (PW-3) to give caution to the appellant so that in future the appellant did not disturb her daughter. On 02.08.2014, the victim went out of the home to attend her private tuition but she did not return home in the expected time. Then they started searching for her. In the course of search, they came to know that she did not attend the private tuition on that day. On that day around 1 pm, her daughter informed her over mobile phone that she had been taken to Agartala by Sujit Datta. On the same date, her husband had lodged the complaint in the Belonia PS. She has given a brief narrative how and in what condition the victim was recovered from the house of one Dilip Das, the relative of the appellant. The victim was witness to the seizure of conch-bangle, vermillion container and pallar and identified the seizure list (Exbt. -3) in the trial. She has candidly admitted that in respect of the first incident, they did not inform the police or the local people. Her daughter had shown her the place of occurrence. There are many houses around the place of occurrence. She has admitted that she did not tell police officer that the appellant put vermillion on the forehead of her daughter. She has denied the suggestions made contrary to her statements in the examination in chief including that her daughter was not found wearing conch bangle and vermillion. She has admitted that the seized materials are available in the market. 30. PW-10, Smt. Sumitra Das turned hostile and when cross-examined by the prosecution she has stated that she did not make any such statement as recorded in the statement purportedly under section 161 of the CrPC. 31. She has admitted that the seized materials are available in the market. 30. PW-10, Smt. Sumitra Das turned hostile and when cross-examined by the prosecution she has stated that she did not make any such statement as recorded in the statement purportedly under section 161 of the CrPC. 31. PW-11, Sri Rajib Biswas is the scribe and he has identified the complaint (Exbt. -1) 32. PW-12, Smt. Shilpi Pal (Das) has denied that the appellant ever came to their house or she gave any statement to the police in connection with that case. She was declared hostile at the instance of the prosecution and during the cross-examination, she has denied to have made any statement as claimed to have been recorded under Section 161 of the CrPC. She has denied to have made false statement in the trial. 33. PW-13, Smt. Rubibala Baidya, a Sub-Inspector of police who has investigated the case has stated in the trial that on the very day of receiving the complaint, she had seized the birth certificate being produced by PW-1, father of the victim, by preparing the seizure list (Exbt. -2) which she had identified. She has stated that on the same day of receiving the complaint, she had examined Sanjit Singh, Rita Singh, Abha Saha, Haradhan Bhowmik, Subrata Majumder and recorded their statement under Section 161 of the CrPC. On 03.08.2017, the following day of the occurrence, she had recovered the victim from the house of Dilip Das, a resident of R.K. Ganj, Santirbazar. At the time of recovery of the girl, she had seized a pair of conch-bangle, pala and one container of vermillion by preparing the seizure list (Exbt. -3) which she identified in the trial. She has also recorded that statements of the remaining witnesses in the course of investigation. On 04.08.2014, the Judicial Magistrate examined the victim and recorded her statement under Section 164(5) of the CrPC. She had prepared the hand sketch map (Exbt. -9) of the place of occurrence. She had revisited the place of recovery on 06.08.2014 with the victim and prepared another hand sketch map (Exbt. -10). She had examined Sumitra Das and recorded her statement under Section 161 of the CrPC. 34. She had prepared the hand sketch map (Exbt. -9) of the place of occurrence. She had revisited the place of recovery on 06.08.2014 with the victim and prepared another hand sketch map (Exbt. -10). She had examined Sumitra Das and recorded her statement under Section 161 of the CrPC. 34. On completion of the investigation, she found adequate evidentiary materials to file the chargesheet and accordingly she filed the chargesheet against the appellant under Section 366 of the IPC and against one Biswajit Das under Section 366 read with Section 109 of the IPC. She has identified Exbt. MO. 3 series i.e. the seized materials from the house of Dilip Das. She has confirmed that PW-7 had stated to him that Biswajit Das, brother in law of the appellant brought vermilion and conch-bangle and gave it to the victim as wife of the appellant. She has also confirmed his statement marked Exbt. 8. 35. In the cross-examination, PW-13 had denied that Exbt. MO (iii) series materials were purchased by PW-9 from the market and handed over to him. She has admitted that she could not find out the vehicle by which kidnapping was aided. She has denied the suggestions made to her and reiterated that she had recorded the statement of Sumitra Das, wife of Dilip Das (PW-10). She has denied that the victim was not recovered from the house of Dilip Das. From the seizure list (Exbt. -3), it appears that those materials were recovered from the house of Dilip Das. There is no indication to the effect that the conch bangles were seized from the wearing of the victim. PW-13 did not vouch that she found the victim wearing vermillion. 36. From the scrutiny of the evidence what has surfaced to this court is that the evidence regarding putting on vermillion on the forehead of the victim is difficult to rely on, inasmuch as both the victim (PW-6) and her mother (PW-9) had added the story in the trial and they have admitted categorically they did not state that part of the episode either to the police or to the magistrate. Even there is no statement that at the time of recovery of the victim girl, PW-13 did notice vermillion on her forehead. This part therefore, is disbelieved by this court for being an improved version. 37. Even there is no statement that at the time of recovery of the victim girl, PW-13 did notice vermillion on her forehead. This part therefore, is disbelieved by this court for being an improved version. 37. So far the occurrence of kidnapping is concerned, this court does not find any reasons to disbelieve the victim inasmuch the sequel of events as stated by the other witnesses has proved that the victim has testified the truth and truth alone in the trial. As regards the proof of age of the victim, what Mr. Chakraborty learned counsel appearing for the appellant has contended cannot be accepted by this court for the reason that the birth certificate was seized on the very day of filing of the complaint (Exbt. -1). On scrutiny of the birth certificate (Exbt. MO. 1) it appears that the said certificate was issued not by any school authority but by the Addl. District Register of Birth and Death on 14.01.2002 under Section 12 and 17 of the Registration of Birth and Death Act, 1969. PW-6 has proved the content of the birth certificate and there had been no cross-examination in this regard. Hence, this court does not find any difficulty in accepting the date of birth as 10.12.2001. Hence, on the day of occurrence i.e. on 02.08.2014, the victim was around 13 years of age. As such, the kidnapping in terms of Section 361 of the IPC is well proved. But this court is of the view that kidnapping is not the only ingredient for establishing the charge under Section 366 of the IPC inasmuch as it provides that "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 for the offence" under section 366 of the IPC. In this regard, in a decision in Kuldeep K. Mahato vs. State of Bihar reported in (1988) 6 SCC 420, the apex court has clearly observed in a closely comparable case as follows: "As for as conviction under Section 366 is concerned we find that the evidence of prosecutrix in the behalf is not conclusive. In this regard, in a decision in Kuldeep K. Mahato vs. State of Bihar reported in (1988) 6 SCC 420, the apex court has clearly observed in a closely comparable case as follows: "As for as conviction under Section 366 is concerned we find that the evidence of prosecutrix in the behalf is not conclusive. her evidence does not indicate that the appellant had kidnapped prosecutrix with the intention to marry with her against her will or in order that she may be forced to illicit intercourse. These two vital ingredients for upholding conviction under Section 366 are not proved and, therefore, the conviction of the appellant under Section 366 cannot be sustained. Coming to the conviction under Section 363 IPC, in our opinion, having regard to the age of the prosecutrix on the date of occurrence being below 18 years as deposed to by Dr. Maya Shankar Thakur (P.W. 2), it will have to be held that the prosecutrix was a minor on the date of occurrence. If this be so, we will have to examine whether Kiran Kumari (P.W. 1) was taken away from the lawful guardianship. Kiran Kumar (P.W. 1) has stated that the appellant had forced her to sit in the tempo and thereafter at the point of dagger made her to keep quieted, she was very much scared and lost senses for some time. In the meantime, tempo reached Ramgarh. On this issue, the defence of the appellant is that she herself came and sat in the tempo and but the fact remains that the appellant carried her to Ramgarh out of the lawful guardianship. There is no serious dispute that the prosecutrix was taken tempo to Ramgarh by the appellant. If this be so, then offence of kidnapping under Section 363 is clearly made out against the appellant for which he has been rightly convicted for the said offence. There is no error in the judgments of the courts below in convicting the appellant under Section 363 IPC." 38. In the same line, Mr. Chakraborty, learned counsel has placed his reliance on Shyam (supra), Chote Lal (supra) and Mihir Das (surpa). On scrutiny of the evidentiary materials it has surfaced that the victim has nowhere made any allegation against the appellant of compelling or seducing her to marriage or illicit relation. In the same line, Mr. Chakraborty, learned counsel has placed his reliance on Shyam (supra), Chote Lal (supra) and Mihir Das (surpa). On scrutiny of the evidentiary materials it has surfaced that the victim has nowhere made any allegation against the appellant of compelling or seducing her to marriage or illicit relation. Even her statement of putting vermillion has not been believed by this court for the reasons as noted. Apart that, this court, having regard to the proposition of law, is of the view that the prosecution has failed to prove the ingredients of offence punishable under Section 366 of the IPC. Hence, the conviction and the sentence under Section 366 of IPC stand interfered with and set aside. However, we are convinced that the offence punishable under Section 363 of the IPC for kidnapping of the victim from her lawful guardianship has been clearly proved. As the offence punishable under Section 363 of the IPC is minor and cognate vis-a-vis Section 366 of the IPC, in exercise of the powers conferred by Section 222 of the IPC, the appellant, on the basis of the evidence as discussed, is convicted under Section 363 of the IPC and as consequence thereof, he is sentenced to suffer rigorous imprisonment for three years with fine of Rs. 5000/- and in default of payment of fine, the appellant shall further suffer simple imprisonment of thirty days. The detention as undergone by the appellant in the course of investigation and trial shall be set off from the substantive imprisonment in terms of Section 428 of the CrPC. In the result, the judgment and order dated 06.09.2012 as delivered in ST(STB) 04 of 2016 stands interfered with and modified in terms of the above. In the result, the appeal stands partly allowed.