IMPORTANT POINT
The prosecution must prove beyond a reasonable doubt that the accused kidnapped the victim with the intent to compel her to marry or to seduce her to illicit intercourse, and mere allegations without corroborative evidence are insufficient for conviction.

JUDGMENT :

SUSMITA PHUKAN KHAUND, J.

This appeal is directed against the Judgment and order dated 29.06.2011, passed by the learned Additional Sessions Judge (FTC) No. 1, Kamrup, in connection with Sessions Case No. 393 (K-G) of 2009, convicting Sri Dhiraj Das, Manash Baishya and Mani Baishya under Section 366 of the Indian Penal Code, 1860 (‘IPC’, for short) and sentencing them to undergo Rigorous Imprisonment for 5 (five) years and a fine of Rs. 2000/-each, with default stipulation. The appellants before this Court are Sri Dhiraj Das and Sri Mani Baishya (hereinafter also referred to as appellants and ‘A-1’ and ‘A-2’, respectively).

2. The facts leading to this appeal are that on 26.03.2008, at about 09:30 am, when the victim ‘X’ was proceeding towards her school on her bicycle, both A-1 and A-2 waylaid her and thereafter, kidnapped her. An FIR regarding this incident was lodged by the informant-say Y. This FIR was registered as Boko PS Case No. 83/2008, under Section 366 IPC and the Investigating Officer (‘IO’, for short) was entrusted with the investigation.

3. The IO embarked upon the investigation. He recorded the statements of the witnesses. During the course of investigation, he forwarded the victim to the Magistrate to record her statement under Section 164 of the Code of Criminal Procedure, 1973 (‘CrPC’, for short) and also forwarded the victim for medical examination. On finding prima facie materials against the appellants, the IO laid charge sheet against the accused, including the appellants under Sections 341/366-A IPC.

4. On appearance of the accused, copies were furnished and this case was committed for trial. At the commencement of trial, a formal charge under Section 366 A IPC was framed and read over and explained to the accused appellants, to which they pleaded not guilty and claimed to be tried.

5. To connect the accused to the crime, the prosecution adduced the evidence of 11 witnesses, including the Medical Officer (‘MO’ in short) and the IO. The defence cross-examined the witnesses to refute the charges, but did not adduce any evidence. To the incriminating circumstances against them, several questions were asked to the appellants under Section 313 (1) (b) of the CrPC and the appellants took the plea of total denial.

6. The learned counsel for the appellants laid stress in his argument that an offence under Section 366-A IPC cannot be brought down to Section 366 IPC as the ingredients to prove Section 366-A IPC is not similar to the ingredients of Section 366 IPC. There is no allegation of any specific act of rape against the accused/appellants herein. The learned trial Court committed a grave error in convicting the appellants.

7. Per contra, the learned Additional Public Prosecutor has supported the decision of the learned trial Court.

8. It was held by the learned trial Court that the victim's (PW-5) evidence is supported by the evidence of PW-1 and PW-2. It was also held that the statement of the victim under Section 164 CrPC is consistent to what she depicted before the IO. It was held that no effective cross examination was carried out to the effect and the victim withstood the test of cross examination. Just because, the victim was compelled to take a photograph with A-1, it cannot be held that the victim was a consenting party. It was held by the learned trial Court that the established circumstances wholly rules out any other reasonable hypothesis of the innocence of the accused and the chain of circumstances is so complete so as to rule out any reasonable possibility of false implication and the circumstances which are established by the prosecution leads to the conclusion regarding the culpability of the accused. Although charges were not framed under Section 366 IPC, the learned trial Court went ahead and convicted the appellants under Section 366 IPC. It is also averred that the charges were framed under Section 366-A IPC and the appellants were not heard on the charges under Section 366 IPC and wit