Point of Law: Crime against women and Children - Prosecution of minor girl - Prejudice is also incapable of being interpreted in its generic sense and once accused is able to show that there is serious prejudice to either of these aspects and that same has defeated rights available to him under Indian Criminal Jurisprudence then accused can seek benefit under orders of Court.

ORDER :

1. Heard Mr. K. Agarwal, learned senior counsel appearing for the appellant. Also heard Mr. D. Das, learned Additional Public Prosecutor, Assam.

2. An ejahar dated 18.04.2006 was lodged by Kazi Atowar Rahman before the Officer-in-Charge, Barpeta Police Station (Sadar) inter-alia stating that at about 8 P.M. of the previous night when his daughter went to pass urine, the appellant herein namely, Arshadul Islam in furtherance of a conspiracy along with another accused namely Rafiqul Islam by taking advantage of the situation gagged the 15 years old minor daughter of the informant namely, Aklima Khatun and lifted and took her with him and in doing so there were two or three persons along with him. An allegation was also made that it has been mentioned in some letter that the informant and his daughter would be killed. An apprehension was raised that the accused appellant may sexually exploit his daughter or may sell her in some other unknown place or may kill her. On the basis of the information being lodged with the police, the Barpeta Police Station Case No. 238/2006 under Section 366-A of the IPC was registered. At the stage of the trial, the following charges were framed against the accused appellant on 24.09.2008 which is extracted as below:

“Firstly: That on 17.04.2006 at about 8 P.M. at village Dattakuchi under Barpeta PS you kidnapped informant’s daughter Miss Aklima Khatun a minor girl under the age of 18 years to go from her house with intent that the said Aklima Khatun may be or knowing that it is likely that said Aklima Khatun will be forced or seduced to illicit intercourse with you and thereby committed an offence punishable under Section 366(A) IPC and within my cognizance.

And thereby direct that you be tried by me/by the said Trial Court on the said charges 366 (A) IPC.”

3. It is taken note of that although the ejahar dated 18.04.2006 refers the name of Rafiqul Islam to be the alleged accused No. 2, the said person was not charge sheeted. In course of the trial, the prosecution examined eight witnesses including the informant Kazi Atowar Rahman, the Investigating Officer and the Doctor, PW-8 Dr. S.P. Sarma, while the defendants examined Habibar Rahman as DW-1.

4. Without going into the details of the evidence that has been led by the prosecution, we take note of that the allegations in the ejahar is that the accused appellant by taking advantage of the situation of the victim girl coming out of her residence had forcibly taken her away by lifting her along with 2/3 other persons and that the accused appellant may sexually violate the minor daughter of the informant Aklima Khatun or may sell her in some unknown place.

5. The charges against the accused appellant is that on 17.04.2006 at about 8 P.M. the accused appellant had kidnapped the minor daughter of the informant namely, Aklima Khatun who was under the age of 18 years with the intent that Aklima Khatun may be or knowing that it is likely that she will be forced or seduced to an illicit intercourse with the accused appellant. A reading of the charge goes to show that there are three ingredients thereof. The first ingredient is that the accused appellant on the given date and time had kidnapped the daughter of the informant. The second ingredient is that the daughter of the informant was below 18 years and, therefore, a minor. The third ingredient is that the accused had the intent or knew that Aklima Khatun will be forced or seduced to an illicit intercourse with him.

6. We further take note of that on such charge, the accused appellant was tried under Section 366A of the IPC.

7. Section 366 of the IPC provides as extracted:

366. Kidnapping, abducting or inducing woman to compel her marriage, etc. - Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely