JUDGMENT :

1. Heard Mr. N Mahajan, learned counsel for the appellant. Also heard Mr. D Das, learned Additional Public Prosecutor, Assam.

2. The present appeal is preferred against the judgment and sentence dated 14.11.2011 passed by the learned Sessions Judge, Morigaon in Sessions Case No. 54/2008 corresponding to GR Case No. 750/2008 whereby the present appellant was convicted under Section 366 of IPC and the appellant was sentenced to undergo rigorous imprisonment for 4 years and also to pay fine of Rs. 1,000/-and in default to undergo rigorous imprisonment for another two months.

3. The prosecution was launched on the basis of an FIR by the PW2 on 29.06.2008 before the Morigaon police station, inter-alia, alleging that the present appellant had kidnapped his minor daughter (name withhold) from the village Borongabari for illegal purpose and confined her for the same purpose. On the basis of such FIR, a police case being Morigaon PS case No. 175/2008 under Section 366 IPC was registered and after completion of investigation the investigating officer laid charge-sheet against the accused under Section 366 IPC.

4. To bring whom the charges against the appellant, the prosecution examined as many as 9 witnesses and one court witness. The accused was examined under the provision of Section 313 Cr.P.C. and thereafter the learned trial court below convicted the appellant and sentenced him as discussed hereinabove.

5. Before having the final determination on the challange, let this court first examine the depositions of the PWs, the foundation of the conviction.

I. PW1, a person from neighborhood deposed that he heard that the victim was missing and subsequently he could know she had gone for outing with the appellant. He was not cross-examined by the defence.

II. PW2 is the father of the victim and the informant. He deposed that he knew the accused, whose house is about one and half furlong long away from his house and situated in the same village. The victim is his daughter who was studying at Class VIII at that relevant time and was aged about 13 years 7 months. He deposed that his minor daughter on the date of incident went out with her bicycle, which he thought that she went for collecting milk. But as she did not return after considerable period of time, he went to his brother-in-law’s house to see if, his daughter has gone there. Later, he was informed by one Hemanta Bora, that his daughter went with the accused and boarded a waiting tempo and both of them left the place. She left the bicycle in the premises of said Hemanta Bora. He collected the bicycle and then went to her school to see whether she was there for the purpose of rehearsal, however he could not find his daughter there also. Then he searched his daughter in the house of relatives of the accused. He verbally informed the matter to the police station, however police wanted him to wait and see. He enquired the matter from the driver of the tempo and the driver confirmed that a pair of boy and girl travelled by his tempo up to Basang hat. Thereafter on the next day, he lodged the FIR. He further deposed that subsequently he got information that his daughter was at Kaki and accordingly proceeded to Kaki, where he found his daughter in the house of one Jiten Saikia. Both the accused and victim were found there and his daughter appeared before him as a bride. Thereafter, both of them were brought back and the accused was handed over to the village headman and he brought his daughter back home. He deposed that he produced the photocopy of birth certificate of the victim before the police and on the date of his deposition he has produced the birth certificate and proved the birth certificate as Ext 2. He also exhibited one exhibit 4, which is the agreement entered into between the accused and the guardian of the victim and proved his signature as Ext 4(i) in the aforesaid agreement.

During cross-examination, he deposed that his daughter stated before him that Jiten was