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IN THE HIGH COURT AT CALCUTTA
ANANYA BANDYOPADHYAY, J.
Md. Ashauddin & Anr. – Appellants
Versus
The State of West Bengal – Respondent
C.R.A. 235 of 2009
Decided on : 17-01-2024
Kidnapping - Indian Penal Code - Section 363, 365, 366, 34 - The court discussed the prosecution's case against the appellants for alleged offences under Section 363 and 365 of the Indian Penal Code. The judgment highlighted the inconsistencies in the evidence of the victim and her parents, the lack of proper documentation to prove the victim's age, and the absence of necessary ingredients to constitute the offences under Section 363/365 of the Indian Penal Code.
Fact of the Case:
The minor daughter of the complainant went missing and was found in the house of one of the appellants. The prosecution alleged offences punishable under Sections 363/365 and 366 of the Indian Penal Code.
Finding of the Court:
The court found inconsistencies in the evidence, lack of proper documentation to prove the victim's age, and absence of necessary ingredients to constitute the offences under Section 363/365 of the Indian Penal Code.
Issues: Inconsistencies in the evidence, lack of proper documentation to prove the victim's age, and absence of necessary ingredients to constitute the offences under Section 363/365 of the Indian Penal Code.
Ratio Decidendi: The court emphasized the importance of proper documentation to prove the victim's age and highlighted the absence of necessary ingredients to constitute the offences under Section 363/365 of the Indian Penal Code.
Final Decision: The appeal was dismissed.
JUDGMENT :
Ananya Bandyopadhyay, J.
1. This appeal is preferred against order and judgment dated 26.2.2009 passed by the Learned Additional District & Sessions Judge, Fast Track, 1st Court, Malda, in Sessions Trial No. 7(11) of 2003 arising out of Sessions Case No. 49 of 2003, in Ratua Police Station Case No. 94 of 2000 dated 04.8.2000 (G.R. Case No. 1201 of 2000), convicting the appellants for alleged offence punishable under Section 363 and 365 of the Indian Penal code and sentenced to suffer simple imprisonment for four(4) years and to pay a fine of Rs.1000/-each in default to suffer further simple imprisonment for one(1) month each for the offence under Section 363 of the Indian Penal Code and each of the convicts are sentenced to suffer simple imprisonment for 4(four) years and to pay a fine of Rs.1000/-each in default to suffer further simple imprisonment for one month for the offence under Section 365 and 34 of the Indian Penal Code.
2. The prosecution story precisely stated on 30.7.2000 at about 10 a.m. the minor daughter of the complainant went missing from his house. He searched for her and at last on receiving information he went to Tulshighat under Harishchandrapur Police Station and found his daughter is in the house of one Ashauddin. He tried to get back his daughter but Ashauddin and his family members obstructed the de-facto complainant and threatened him. Thereafter on 02.8.2000 they returned to Harishchandrapur Police Station and on 04.8.2000 with the help of Police he recovered his daughter from the house of Ashauddin i.e. appellant No.1 herein.
3. The de-facto complainant lodged a written complaint stating the above facts. On the basis of the said written complaint a First Information Report was drawn up being Ratua Police Station Case No. 94 of 2000 dated 04.8.2000 for alleged offence punishable under Sections 363/365 and 366 of the Indian Penal Code.
4. After completion of investigation the charge-sheet was submitted by the police against both the appellants under Sections 363/365/366 and 34 of the Indian Penal Code. Changes were framed to which the appellants pleaded not guilty and claimed to be tried.
5. The prosecution to prove its case examined 11 (eleven) witnesses and exhibited certain documents. The witnesses were as follows:-
ii. PW-2/Naimuddin, the father of PW-1and defacto complainant of this case.
iii. PW-3/Amina Bibi, the mother of PW-1.
iv. PW-4/ Md. Ali, uncle of PW-1, he became hostile.
v. PW-5/Abdus Sattar, the brother-in-law of PW-1
vi. PW-6/Dr. P. Sikdar, doctor who medically examined the PW-1
vii. PW-7/Abdul Rahim, maternal uncle of PW-1, he became hostile.
viii. PW-8/Md. Manik, cousin brother of P.W-1 who became hostile at the time of his evidence.
ix. PW-9/ Abdul Halim, maternal uncle of PW-1.
x. PW-10/Md. Nowsa Ali, the teacher-in-charge of Bhagabanpur High Madrasah. He proved the school certificate.
xi. PW-11/S.S. Chatterjee, I/O. of the case.
6. The Learned advocate for the appellants submitted that :
ii. Entire evidence and materials on record were not considered in its entirety.
iii. The witnesses had stated that Nazrul, PW-1 went to the house of Ashauddin via Samai and certain witnesses stated that Ashauddin kidnapped the PW-1 and she was recovered from the house of accused Ashauddin. However, the fact remained that in spite of some laches on the part of prosecution, it had at least brought on record two accused persons involved in the alleged offence of kidnapping Ashauddin.
iv. The Learned Judge failed to appreciate that the witnesses are closely related to PW-1 and as such they should be disbelieved.
v. Upon a proper appreciation of the evidence on record and applying the provisions of law rightly judici
Proper documentation to prove the victim's age and the presence of necessary ingredients to constitute the offences under Section 363/365 of the Indian Penal Code are crucial in establishing the pros....
The Court clarified the distinction between kidnapping and abduction, emphasizing the necessity of proving intent and compulsion in the offense.
Kidnapping from lawful guardianship – Consent of victim is immaterial and subsisting family bond cannot be excuse for escape of victim from parental custody at pretext or behest of pleasant and affab....
To convict for abetment under IPC, the prosecution must prove the abettor's intent and that the act was committed as a consequence of the abetment, which was not established here.
The prosecution must prove the victim's age and the circumstances of the alleged kidnapping beyond a reasonable doubt; inconsistencies in evidence warrant the benefit of doubt to the accused.
The court reaffirmed that consent of a minor is immaterial in cases of kidnapping under Section 361 IPC, and the prosecution must prove the act of taking or enticing a minor from lawful guardianship ....
The central legal point established in the judgment is the requirement for clear and consistent evidence to establish the elements of a criminal offense, particularly regarding the age of the victim ....
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 t....
The court upheld the conviction under Section 366 IPC for kidnapping a minor, affirming the trial court's findings of evidence and intent.
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