Prosecution must prove intent for kidnapping under Section 366 IPC; mere abduction insufficient for conviction, especially when delays and contradictions in victim's testimony exist.

JUDGMENT :

ALOK KUMAR PANDEY, J.

Heard learned counsel for the appellant and learned A.P.P. for the State.

2. The name of informant and victim have not been disclosed in the present judgment to protect the prestige and dignity of the victim.

3. The present appeal is directed against the judgment of conviction dated 24.02.2010 and order of sentence dated 25.02.2010 passed by learned Additional Sessions Judge, Fast Track Court No.IV, Patna in S.Tr. No. 228 of 2009 whereby and whereunder appellant has been convicted for the offence punishable under Sections 366 of the Indian Penal Code and he has been sentenced to undergo rigorous imprisonment for six years and a fine of Rs. 1000/- (one thousand) and, in default of payment of fine, appellant has to undergo a further rigorous imprisonment of six months.

4. As per prosecution case, the informant in his fardbeyan recorded by S.I. Sona Prasad Singh of Ram Krishna Nagar police station on 17.09.2008 at 13:00 hours at the police station, has stated that on 04.09.2008 at about 3:00 p.m., his wife along with minor son went to Kankarbagh for purchasing articles in market, but did not return back. He proceeded for search of his wife. During the course of search, he came to know that appellant is alleged to have taken away by inducing her. It is further alleged that appellant has distant relationship with the informant and he used to come to his house.

5. On the basis of fardbeyan of the informant, Ram Kishna Nagar P.S. Case No. 43 of 2008 was registered under Sections-366 and 498 of I.P.C. Investigation started and after completion of investigation, charge-sheet has been submitted against the appellant under Section 366 of I.P.C. Cognizance has also been taken under Section-366 of I.P.C. and the case was committed to the court of sessions for trial and disposal. On 08.05.2009 charges were framed against the appellant under Section 366 of I.P.C. Charges were read over and explained to the accused person to which he pleaded not guilty and claimed to be tried.

6. In order to bring home guilt of accused person, prosecution has examined all together two witnesses 6 witnesses. P.W. 1/informant, P.W. 2 (victim), P.W. 3 Ram Jewahar Singh, P.W. 4 Binay Kumar, P.W. 5 Sita Ram Prasad and P.W. 6 Rajendra Kumar/I.O.

7. Prosecution has produced following documentary evidence on record:-

Exhibit-1: Signature of the informant on the fardbeyan;

Exhibit-2: Signature of victim upon the statement u/S- 164 Cr.P.C.

Exhibit-3: F.I.R.

8. Defence has also examined one defence witness, namely Sanjay Ram as D.W. 1.

9. Defence of the appellant as gathered from the line of cross-examination of prosecution witnesses as well as from the statement under Section 313 of the Cr.P.C. is that of total denial.

10. After hearing the parties, the learned trial court convicted the appellant and sentenced him as indicated in the third paragraph of the judgment.

11. Learned counsel for the appellant has submitted that there is a considerable delay of 13 days in lodging of the F.I.R. Though the occurrence took place on 04.09.2008, but the F.I.R. has been lodged on 17.09.2008 and I.O./P.W. 6, during adducing evidence has not explained such delay in the case diary and the whole prosecution-story is in question mark and the very lodging of F.I.R. is just to fill up the lacuna in order to suit the prosecution-story and appellant has been made accused in the present case though it has been admitted that appellant is the distant relative of the informant. The initial