IMPORTANT POINT
The court ruled that voluntary consent negates the charge of kidnapping under IPC Section 363.

JUDGMENT :

SUSMITA PHUKAN KHAUND, J.

1. This appeal is directed against the judgment and order dated 19.06.2012 passed by the learned Additional Sessions Judge (FTC), Lakhimpur, North Lakhimpur in connection with Sessions Case No. 118 (NL)/2011 arising out of GR Case No. 1296/2010. The appellant Sri Maina Sarkar (hereinafter referred to as the appellant or accused) is aggrieved by the judgment and order as he has been convicted under Section 363 of the Indian Penal Code, 1860 (IPC for short) to undergo rigorous imprisonment for one year and to pay a fine of Rs.15,000/- (Rupees Fifteen Thousand) with default stipulation.

2. The genesis of the case was that on 10.11.2011 the appellant kidnapped the minor victim X, who was alone at home. The victim’s mother then lodged an FIR with the police at Bihupuria Police Station, which was registered as Bihupuria Police Station Case No. 325/2011 under Section 366 (A) of IPC. The Investigating Officer (IO for short) embarked upon the investigation and recorded the statements of the witnesses. The victim was forwarded to the Magistrate for recording her statement under Section 313 of Code of Criminal Procedure, 1973 (Cr.P.C. for short) and also she was forwarded for medical examination. Evidence was collected by the IO. On finding sufficient materials against the appellant, charge sheet was laid against the appellant under Section 366 (A) IPC. At the commencement of trial, a formal charge was framed under Section 366 IPC and the appellant abjured his guilt and claimed innocence.

3. To substantiate its stance, the prosecution adduced evidence of seven witnesses and the defence cross examined the witnesses to refute the charges. The victim’s father ‘Z’ was also examined as Court Witness No. 1. On the incriminating evidence projected by the prosecution through the witnesses, several questions were asked to the appellant. To the question No. 1 the appellant has answered that the victim called him over phone and went to his house on her own volition. When the appellant was confronted about kidnapping a minor victim who was 14 (Fourteen) years old, the appellant replied that the victim informed him that she was 18 (Eighteen) years old at the time of incident. The tone and terror of answers of the appellant to the questions under Section 313 of Cr.P.C. depicts a plea of total denial.

4. It has been held by the learned Trial Court that the prosecution could prove beyond a reasonable doubt that the victim was below 16 (Sixteen) years of age. Learned Trial Court has held that it has surfaced through the evidence that the victim had a love relationship with the appellant. Although the victim has alleged that five boys had kidnapped her, the neighbours did not hear any commotion at the time of incident.

5. The learned counsel for the appellant has submitted that the Medical Officer has opined that the victim was above 15 years and below 17 years and the appellant gets the benefit of 2 years on the higher side. The victim had a love relationship with the appellant and she voluntarily went with the appellant. The appellant was also under the impression that the victim was a major and he has indeed admitted that the victim went with him on her own volition.

6. The learned Trial Court has framed charge under Section 366 of the IPC, but as the victim went with the appellant on her own volition, the learned Trial Court has scaled down the offence under which the appellant was charged, as the victim was found to be a minor at the time of incident. It is submitted that a false case has been brought up against the appellant. There is no instance of kidnapping and no case of kidnapping has been made out against the appellant.

7. On the contrary, the Learned Additional Public Prosecutor, Mr. B.B. Gogoi has submitted that no interference is warranted in this case. A lenient punishment has been imposed upon the appellant. The victim was below 18 years of age and thus, consent is irrelevant in such a case. The decision of th