IMPORTANT POINT
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.

JUDGMENT :

Ananya Bandyopadhyay, J.

1. This appeal is preferred against the judgment and order dated 09.03.2004 passed by the Learned Additional District & Sessions Judge, 1st Fast Track Court, Hooghly in Sessions Trial Case No. 8/2003 arising out of Sessions Trial No. 59/96 convicting the appellant under Sections 366/109 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for 3 years and to pay a fine of Rs.1000/- in default to suffer further rigorous imprisonment for 6 months.

2. The prosecution case emanated on the basis of a complaint lodged one Nilima Chatterjee, inter alia stating that on March 26, 1991 at around 11:00 a.m. -11:30 a.m., the eldest daughter of the complainant, a student of class -VIII of Siksha Mandir Balika Vidyalaya went to her friend’s house at Kamarpara. However, the victim girl (PW-6) did not return to her house which made the complainant (PW-1) worried and went to Chinsurah Police Station for lodging a verbal complaint. Subsequently, the complainant found a piece of paper kept inside the books of the victim lady and it was written that the principle accused namely Tusthu Bera wishes to abscond with the victim lady (PW-6). On March 27, 1991, the complainant went out to search for the victim lady in the house of the principle accused and there they came to know that the victim girl was taken away by the accused person to give her marriage with the principle accused. Meanwhile, the victim girl was kept secretly at the house of the principle accused. Thereafter, the father of the victim girl (PW-3) went to the house of the elder sister of the principle accused (acquitted) to get back the victim lady but she refused to return back the victim girl and informed about the ensuing marriage between the victim girl and the principle accused.

3. Based on the aforesaid complaint, Chinsurah Police Station Case No. 107 dated 02.05.1991 under Sections 363/366/120B/34 of the Indian Penal Code was instituted.

4. On completion of the investigation, the charge-sheet was filed subsequent to which charges were framed and the appellant pleaded not guilty and claimed to tried.

5. The prosecution, in order to prove its case, cited 8 witnesses and exhibited certain documents and the defence examined none.

6. Learned Advocate for the appellant submitted that –

i. The charge was framed under Section Sections 363 and 366 of the Indian Penal Code and the appellant was convicted under Sections 366 and 109 of the Indian Penal Code for abetment of the offence, without the involvement of the appellant in the alleged offence.

ii. In the petition of complaint the de-facto complainant did not state that her daughter was last seen with Tusthu Bera in a Rickshaw and the complaint was written by the lawyer of the de-facto complainant.

iii. The Investigating Officer did not prepare any Sketch Map to state the place of occurrence and whether at all the victim girl was taken away by the principle accused from that spot or not cannot be ascertained.

iv. The Investigating Officer was never examined by the prosecution which created a material lacuna raising suspicion regarding the process of investigation in the prosecution case. The appellant was deprived of cross-examining him relating to the reliability of the alleged eye-witness i.e., the sister-in-law of the complainant (PW-2) who had allegedly last seen the victim girl and the principle accused together at Tolaphatak at Chinsurah.

The Hon'ble Supreme Court in the case of Munna Lal V. State of Uttar Pradesh, reported in (2023) SCC OnLine SC 80, observed in Paragraphs 38 and 39-

“Statement of PW-3 under section 161, Cr.P.C. was recorded nearly 24 days after the incident. Since the Investigating Officer did not enter the witness box, the appellants did not have the occasion to cross-examine him and thereby elicit the reason for such delay. Consequently, the delay in recording the statement of PW-3 in course of investigation is not referred to and, therefore, remains unjustified. Th