The consent of the minor is immaterial in cases of kidnapping from lawful guardianship, and persuasion by the accused creating willingness on the part of the minor to be taken out of the keeping of the lawful guardian would be sufficient to attract the section.

JUDGMENT :

1. A minor girl who was a student of Class-VII in the year 2012 was found missing on and from 15th November, 2012. She used to stay with her mother, younger brother and grandmother. The father of the said missing girl had expired. When the family members of the said girl could not find her in spite of thorough search, her mother lodged a missing diary on 15th November, 2012 at Burtolla Police Station. However, the police failed to find out the said missing girl.

2. Subsequently, the mother of the victim girl came to know from the friends of her daughter that one Suraj Singh eloped her and took her to some unknown place. Suraj was actively aided and abetted by his uncle, Sanjay Singh.

3. After getting such information, the unfortunate mother lodged a complaint before the police on 7th December, 2012 on the basis of which a case being Burtolla Police Station Case No.565 dated 14.12.2012 was registered against Suraj Singh, Sanjay Singh and others.

4. The accused persons were arrested during investigation. The victim girl was recovered while she was in association with accused Suraj Singh. Police submitted charge-sheet against the above-named two accused persons under Section 366 read with Section 120B of the Indian Penal Code. Since the offence under Section 366 of the Indian Penal Code is exclusively triable by the Court of Sessions, the case was committed to the learned Chief Judge, City Sessions Court who, in turn, transferred the said case to the 2nd Fast Track Court of the learned Additional Sessions Judge at Bichar Bhawan, Kolkata.

5. The learned Trial Judge framed charge under Section 366 read with Section 120B of the Indian Penal Code against both the accused persons and took up the case for trial, when the accused persons pleaded not guilty. The trial of the case concluded with conviction of Suraj Singh for committing offence punishable under Section 366 of the Indian Penal Code. The learned Trial Judge handed down sentence of simple imprisonment for a term of 2 years and also to pay a fine of Rs.5,000/- only, in default, to suffer simple imprisonment for another term of 3 months for the offence punishable under Section 366 of the Indian Penal Code.

6. Being aggrieved, convict Suraj Singh has preferred the instant appeal assailing the order of conviction and sentence.

7. In course of trial, prosecution examined 13 witnesses. Amongst them, the victim girl deposed as P.W.10. P.W.1 is the mother of P.W.10 and the de-facto complainant. P.W.2, Puja Sonkar is a friend of the victim girl. P.W.3, Neelam Pandey is a local resident to whom the victim girl calls “Bhabi”. Both P.W.3 and the victim had friendly relation. P.W.4, Chandan Khatick and P.W.5, Rupa Das are residents of the said locality where the victim girl used to reside. P.W.6, Dr. Mukul Sarkar is a Medical Officer at Calcutta Medical College & Hospital in the year 2013 in the department of Radio Diagnosis. P.W.7, Dr. Nabanita Adhikari conducted medico legal examination of the victim girl. P.W.9, Dr. Biplab Shee examined the appellant and submitted his report stating, inter alia, that there is nothing to suggest that the patient is incapable of sexual intercourse. P.W.11 was posted as Metropolitan Magistrate, 4th Court at Kolkata on 26th December, 2012. She recorded the statement of the victim girl under Section 164 of the Code of Criminal Procedure. P.W.12, Manoj Kumar Das was the Teacher-in-Charge of Balkrishna Vidyalaya. In course of his evidence on 23rd September, 2015, he produced the Admission Register of the school where victim girl used to read. He also submitted photostat copy of birth certificate of the victim girl, which was produced by her guardian at the time of admission in school. P.W.13 is the Investigating Officer of the case. The written complaint, medico legal examination report, formal FIR, Admission Register of the school, photostat copy of the birth certificate of the victim girl were also exhibited during trial.

8. It is needless to record that