JUDGMENT :

Siddhartha Roy Chowdhury, J.

1. This criminal appeal impeaches the judgement passed by learned Additional Sessions Judge, 1st Court, Hooghly Sadar on 30th July, 2019 in S.T. No. 17 (11)/2011 S.C. No. 02/2011.

2. Briefly stated, Smt. Bandana Chakraborty on 29th September, 2009 informed the Officer-in-charge of Balagarh Police Station, Hooghly that her daughter Mistu Chakraborty @ Punkai aged about 16 years one month fell in love with Pradip Das, a co-villager. Pradip Das used to take her daughter to different places defying the parents of Mistu Chakraborty. Her daughter told her that Pradip Das would marry her and she indulged in sexual relationship with said Pradip Das on that consideration. On 28th September, 2009 at about 8.00 p.m. her daughter left the house in order to watch the immersion procession of Goddess Durga. At about 10.00 p.m. the informant came to know from the neighbours that her daughter was sniveling in front of the Saw Mill of Mani Debnath. She along with her husband and her brother-in-law Abhijit Mukherjee rushed there and found Mistu who was blubbering. Mistu disclosed that Pradip took her by his motorcycle for a ride. His friends Bhombal Biswas and Sukhen Debnath accompanied them. Sukhen and Bhombol outraged the modesty of Mistu while Pradip remained as spectator. Pradip also stated that he would marry her. On 29th September, 2009 at about 8.00 a.m. Mistu Chakraborty @ Punkai, scared of being scandalized, set herself on fire and was fighting for her life in Chinsurah Sadar Hospital.

3. The information since disclosed offence cognizable in nature Balagarh P.S. Case No. 121 of 2009 was registered under Section 493/376(f)/354/417/109 of the Indian Penal Code. Police took up investigation which culminated into submission of charge sheet against the accused persons.

4. Learned Trial Court framed charges under Section 376/366/417/306 of the I.P.C. against Pradip Das and charge under Section 366/354 of the I.P.C. was framed against the other two accused persons Bhombol Biswas @ Biswajit and Sukhen Debnath. The accused persons stood the trial pleading their innocence.

5. To crown success prosecution examined as many as 16 witnesses. Learned Trial Court after considering the evidence of prosecution witnesses was pleased to record an order of acquittal against Bhombol and Sukhen Debnagh. Pradip Das was found guilty to the charge under Section 366/417/306 of the I.P.C. and was sentenced to undergo imprisonment for three years for committing offence under Section 366 of the I.P.C. and to pay a fine of Rs.5000/- with default clause, rigorous imprisonment for one year for the offence committed under Section 417 of the I.P.C. and rigorous imprisonment for seven years for committing offence under Section 306 of the I.P.C. subject to provision of Section 428 of the Cr.P.C. The sentences would run concurrently.

6. Mr. Samiran Mondal, learned Counsel for the appellant submits that the victim was admittedly not minor. According to mother of the victim, she was more than 16 years of age when the alleged incident took place. Prosecution did not produce any document to substantiate that the victim was below the age of 18 years. That apart the prosecution witnesses including the parents of the victim particularly P.W. 1, the mother, stated that the victim and the appellant were in romantic relationship and they used to roam around, not caring a fig for what the parents of the victim would say to them. On the fateful date the victim left her house, not with the accused person. After leaving her house she met the accused person. Therefore, it cannot be said that the accused person took the victim out of the lawful guardianship of her parents or without the consent of the guardian. Thus the accused person cannot be held guilty for committing offence under Section 366 of the I.P.C. more so when the prosecution failed to prove the age of the victim. It is the specific case of the prosecution that accused person and the victim wer