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IN THE HIGH COURT AT CALCUTTA
Debangsu Basak, Md. Shabbar Rashidi, JJ.
Manish Gupta - Appellant
Versus
State Of West Bengal - Respondent
Criminal Appeal No. 186 of 2021
Decided On : 02-12-2022
Kidnapping - Minor - Indian Penal Code, Section 363, Prevention Of Children from Sexual Offences Act - Section 6 - 363, 366A, 376(2)(n), 120(B), 6/17 - The court upheld the conviction of the appellant under Section 363 of the Indian Penal Code and Section 6 of the POCSO Act. The victim, a minor, was enticed away by the appellant and had physical relations with him, constituting aggravated penetrative assault under the POCSO Act. The appellant's defense that the victim left her house voluntarily was rejected, as the consent of a minor is not recognized in the eyes of the law.
Fact of the Case:
The victim, a minor, was enticed away by the appellant and had physical relations with him. The appellant claimed that the victim left her house voluntarily, but the court rejected this defense, as the consent of a minor is not recognized in the eyes of the law. The appellant was convicted under Section 363 of the Indian Penal Code and Section 6 of the POCSO Act.
Finding of the Court:
The court found the appellant guilty of kidnapping a minor and committing aggravated penetrative assault under the POCSO Act. The court rejected the appellant's defense that the victim left her house voluntarily, emphasizing that the consent of a minor is not recognized in the eyes of the law.
Issues: The main issue was whether the appellant's actions constituted kidnapping and aggravated penetrative assault under the POCSO Act, despite the appellant's claim that the victim left her house voluntarily.
Ratio Decidendi: The court held that the appellant's actions constituted kidnapping under Section 363 of the Indian Penal Code and aggravated penetrative assault under the POCSO Act, as the victim was a minor and her consent was not recognized in the eyes of the law.
Final Decision: The court upheld the conviction of the appellant under Section 363 of the Indian Penal Code and Section 6 of the POCSO Act, affirming the sentence imposed on the appellant.
JUDGMENT
Md. Shabbar Rashidi, J. - This appeal is directed against the judgment and order dated 13.04.2021 passed by Learned First Additional District and Sessions Judge, Sealdah in a special trial no. 1(11)2020 arising out of special case no. 31/2020 convicting the appellant under Section 363 of the Indian Penal Code together with section 6 of Prevention Of Children from Sexual Offences Act.
2. The fact giving rise to the instant case is that on 30.06.2020, one Sitaram Agarwal lodged a complaint with Ultodanga Police Station stating, inter alia, that his daughter i.e. the victim girl aged about seventeen years and eight months went missing. It was stated that at 5 a.m. in the morning, the complainant found the gate of his flat open and the victim was not there in the house. He made a search in the nearby areas and at the house of his relatives but remained clueless. The complainant also came to know that Manish Gupta was also missing from his house. The complainant and his family had a doubt that the said Manish Gupta (appellant) again had misled his daughter and taken her from the house. Her personal belongings like own clothes, rings etc. were also missing.
3. On the basis of such written complaint, Ultodanga Police Station Case No. 131 dated 30.06.2020 under Section 363 I.P.C. was started against the accused Manish Gupta.
4. The police took up the investigation and on completion of investigation submitted charge-sheet under Section 363/366A/376(2)(n), 120(B) of the Indian Penal Code read with section 6 of POCSO Act.
5. Upon compliance of the provision under section 207 of the Code of Criminal Procedure, the case was committed to the Court of Session. Considering the materials in the case diary, charges under Section 363/366A/376(2)(n)120(B) were framed against the complaint to which he pleaded not guilty and claimed to be tried.
6. In order to bring home the charges leveled against the accused, prosecution examined as many as sixteen witnesses.
7. The de facto complainant himself deposed as PW1. He stated that his youngest daughter went missing on 30.06.2020 in the morning and he lodged a missing diary with Ultodanga Police Station. He proved the missing diary (Exhibit 1). He further stated that Adhar Card and Birth Certificate of his daughter was seized by police under a Seizure List. PW1 proved his signature and that of his nephew on the Seizure List (Exhibit 2/1 and 2/2 respectively) and the Zimma Bond also, therefore, the said documents received by PW1 were marked as Exhibit 3. PW1 further stated that his daughter reported him that she was enticed away by the convict and raped also. In his cross-examination, PW1 stated that he accompanied his daughter, and her statement under Section 164 of the Code of Criminal Procedure was recorded. He kept waiting outside the room of the magistrate.
8. PW2 is the mother of the victim; she has stated that her youngest daughter i.e. the victim was seventeen years old at the time of incident. On 30.06.2020 at about 5 a.m., she could not find her daughter in her room. A search was made at the house of relatives and nearby places but her daughter could not be found for which GDE was lodged also by her husband. She further stated that she came to know that her daughter was enticed away by the convict Manish Gupta. He earlier also took away her daughter in the year 2018 to Delhi. PW2 also stated that her daughter, the victim was recovered on 06.08.2020 from Dumdum who was, therefore, concealed by the other accused persons Kamal Gupta, Ramji Gupta and Hawaldar Dubey. Upon return of her daughter, she narrated the incident to PW2 and a complaint was lodged by her. She proved her signature on the written complaint (Exhibit 6/1). PW2 also stated that her daughter narrated to her that during the tenure of one month, the convict Manish Gupta forcefully committed rape upon her.
9. PW3 is the brother of the victim. He has stated that on 30.06.2020, his sister aged 17 years went missing. She was searched in
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