IMPORTANT POINT
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.

JUDGMENT :

Susmita Phukan Khaund, J.

Heard Mr A Ahmed, learned counsel for the appellant, and Mr K Baishya, learned Additional Public Prosecutor for the State of Assam.

2. This appeal is directed against the Judgment and order dated 09.07.2013, passed by the learned Sessions Judge, Dhemaji, in connection with Sessions Case No. 87(DH)/2011, convicting Sri Anujoy Das (hereinafter referred as the appellant), under Section 363 of the Indian Penal Code, 1860 (IPC, for short) and sentencing him to undergo Simple Imprisonment for 4 years and to pay a fine of Rs.5,000/-, with default stipulation, with a direction to pay the fine amount as compensation to the victim, as per provisions of Section 357 of the Code of Criminal Procedure, 1973 (CrPC, for short).

3. The genesis of the case is that the minor victim who was 15 years old was kidnapped by the appellant while she came out of the house to answer nature’s call. An FIR regarding this incident was lodged by the father (also referred to as –‘Y’ or informant). Investigation commenced and after recovery of the victim (also referred to as-‘X’), she was forwarded to the Magistrate for recording her statement under Section 164 CrPC and for medical examination by the doctor.

4. On completion of investigation, charge sheet was laid against the appellant under Section 366 (A) of the IPC. At the commencement of trial, a formal charge was framed under Section 366 IPC and the appellant pleaded not guilty and claimed to be tried. To substantiate its stance, the prosecution adduced the evidence of 8 (eight) witnesses and defence cross-examined the witnesses to refute the charges. On the incriminating materials projected by the prosecution through the evidence of the witnesses, several questions were asked to the appellant under Section 313 CrPC. The answers to the questions under Section 313 CrPC were evasive in nature and he denied all the incriminating materials against him.

5. Learned counsel for the appellant laid stress in his argument that the format of the FIR clearly reveals that the victim was found missing from her house on 05.02.2011 at about 07:30 pm and the FIR was lodged on 06.02.2011, at about 11:30 pm, but before informing the Police the victim was forwarded for medical examination, which appears to be sketchy. The findings of the Medical Officer (MO, for short), clearly reveals that the victim was examined at about 05:20 pm, on 06.02.2011, which casts a shadow of doubt as to why the victim was forwarded for medical examination even before the FIR was lodged with the Police. The other major discrepancy in the evidence is that the victim’s uncle has categorically stated that the victim was recovered from the house of Batharam Taw, but this person was not examined as a witness.

6. It if further submitted that the evidence of the witnesses are contradictory. Two witnesses have stated that the victim was found in the house of Batharam Taw, whereas two witnesses have deposed that the victim was found and confined with the appellant on the village road.

7. The remaining part of the argument of the learned counsel for the appellant will be discussed at the appropriate stage.

8. The learned Additional Public Prosecutor has submitted that the statement of the victim can be relied upon, as her evidence is consistent to her statement under Section 164 CrPC.

9. The learned Additional Public Prosecutor laid stress in his argument that the time recorded in the format of the FIR as 11:30 pm has been erroneously recoded as ‘pm’ instead of ‘am’. The remaining part of the argument of the learned Additional Public Prosecutor will be discussed at the appropriate stage.

10. The learned trial Court delineated the following point while deciding this case:-

1. Whether the accused Anujoy Das on 05.02.2011 at about 07:30 pm kidnapped the victim ‘A’, a minor girl aged about 16 years taking her away out of her lawful guardianship without the consent of the guardian with intent to compel her to force or seduce illicit int