The absence of proven intent for illicit intercourse under Section 366A leads to the conviction under Section 363 for kidnapping, emphasizing the need for clear evidentiary standards in such cases.

JUDGMENT :

PRADEEP KUMAR SRIVASTAVA, J.

1. The above appeals arise out of common judgement, hence heard together and are being disposed of by common judgment.

2. The present appeals are directed against the judgment and order of conviction and sentence dated 29.11.2006 passed by learned 1st, Additional Sessions Judge, Rajmahal in S.C. No.134 of 2005 whereby and whereunder, the above appellants have been held guilty for the offence under section 366A read with 34 of INDIAN PENAL CODE and sentenced to undergo R.I. of 6 years along with fine of Rs.5,000/- each with default stipulation.

FACTUAL MATRIX

3. Factual matrix giving rise to this appeal is that on 26.06.2004, the informant, Nimai Ghosh lodged an FIR at Barharwa Police Station stating inter alia that on 17.06.2004 at about 7 PM, the accused, namely, Sumitra Mandal, Munilal Mandal, Ratan Cr. Appeal (S.J.) No.1652 of 2006 Mandal, Jatan Mandal had kidnapped his minor sister aged about 13 years from the house with intention to solemnize her marriage with one Prem Mandal. It is further alleged that the victim girl was taken to Farrakah by a car by the accused persons. It is further alleged that the informant returned to his home from his shop then he was informed by his wife about the said occurrence. According to the informant, so many villagers have seen the occurrence and he has proved the written report as Ext.4.

On the basis of above information, the FIR being Barharwa P.S. Case No.36 of 2004 was registered for the offence under sections 366 (A)/34 of IPC against all six accused persons. After completion of investigation, charge-sheet was submitted against all the accused persons for the offence under sections 366A r/w 34 of IPC. The case was committed to the court of Sessions where S.C. No.134 of 2005 was registered. Charge was also explained to the accused persons, who have pleaded not guilty and claimed to be tried. After conclusion of trial, the impugned judgment of conviction and order of sentence was passed, which has been assailed in this appeal.

4. Learned counsel for the appellants has submitted that during pendency of the appeal, appellant No.2, namely, Munilal Mandal of Cr. Appeal (S.J.) No.1652 of 2006 has died and to this effect, a report being Letter No.232/2019 dated 29.05.2019 has also been received from the learned Additional Sessions Judge-I, Rajmahal.

5. Considering the same, the appeal stands abated, so far appellant No.2, namely, Munilal Mandal of Cr. Appeal (S.J.)No.1652 of 2006 is concerned.

6. Learned counsel for the appellants, namely, Sumitra Mandal, Ratan Mandal, Prem Mandal @ Prem Kumar Mandal and Jatan Mandal assailing the impugned judgment and order has vehemently argued that it is a case where it is alleged that the victim girl was kidnapped by the accused persons and she was kept with accused, Prem Mandal for one month after kidnapping. There is no complaint of the victim girl that any illicit intercourse was committed with her. It is also admitted case of the prosecution that the victim girl was not married with Prem Mandal. Therefore, ingredient of offence under section 366A of IPC is not proved against any of the accused persons. At best, it may be a case falling under section 363 of Cr. Appeal (S.J.) No.1652 of 2006 IPC alone. The appellants have remained in custody for considerable period during trial of the case. No specific overt act has been attributed against the appellants, namely, Sumitra Manda and Ratan Mandal. Further, the appellants, namely, Prem Mandal and Jatan Mandal have remained in custody for more than 2 years and have sufficiently been punished. Therefore, the appellants deserve acqu