Conviction under Sections 366 and 447 upheld; conviction under Section 366A set aside due to lack of evidence supporting essential elements.

JUDGMENT

By Court:-

Heard Mr. Akhouri Awinash Kumar, learned counsel for the appellants as well as Mrs. Nehala Sharmin, learned Special Public Prosecutor appearing for the State.

2. Instant criminal appeal is directed against the judgment dated 15.06.2006 and order of sentence dated 19.06.2006 passed by learned XVIIth Additional Judicial Commissioner, Ranchi in Sessions Trial No. 589 of 2003, arising out of Doranda P.S. Case No. 60/2003, whereby and where under the appellant has been held guilty for the offences punishable under Sections 366 , 366A and 447 of the INDIAN PENAL CODE read with Section 34 of the I.P.C. and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.1000/- under Section 366 -A of I.P.C. The appellant was further sentenced to undergo R.I. for seven years along with fine of Rs.1000/-for the offence under Section 366 of the INDIAN PENAL CODE and sentenced to undergo R.I. for three months for the offences under Section 447 of the I.P.C. with default stipulation. All the sentences were directed to be run concurrently.

Factual Matrix

3. As per F.I.R. daughter and niece of the informant had gone to the house of their uncle situated at Doranda for attending the Matriculation Examination. At the midnight of 22/23.02.2003 at about 02:00 AM, both the minor girls became traceless and on search by the family members they were unable to find them. It is further alleged that Raju Machhwa @ Chhota Raju and Madan Machhwa (present appellant) were also found absent from their houses. Therefore, suspicion towards them arose that they have kidnapped the girls on inducement.

4. On the basis of written report submitted by the informant, the police instituted Doranda P.S. Case No. 60/2003, dated 25.02.2003 under Sections 366 , 447, 366A/34 of the I.P.C. against three persons including the present appellant and after investigation, the police submitted two charge-sheets, one against the present appellant and a supplementary charge-sheet against co-accused person (Chota Raju @ Raju Machhwa).

5. After taking cognizance of the offence, the case was committed to the Court of Sessions for trial and disposal.

6. The appellant denied the charges and claimed to be tried. After conclusion of trial, impugned judgment has been passed.

7. Learned counsel for the appellant has submitted that appellant has been convicted and sentenced both for offence under Sections 366 and 366-A of the INDIAN PENAL CODE , although the ingredients of Section 366 -A of the I.P.C. has not been established by the prosecution and it is the evidence of the victim girl against the present appellant that he abducted on the point of knife and established sexual intercourse for four consecutive months. Therefore, conviction for the offence under Section 366 -A of the I.P.C. is absolutely not warranted under law and liable to be set aside.

8. So far conviction of the present appellant for the offence under Sections 366 and 447 of the I.P.C. is concerned, learned counsel for the appellant, without touching merits of the judgment, has confined himself towards the quantum of sentence awarded to the appellant. It is submitted that the maximum sentence awarded to the appellant at is R.I. of seven years for the offence under Section 366 I.P.C. and the appellant has already undergone sentence, during pendency of the trial and this appeal, for about 03 years 09 months and has sufficiently been punished for the offence committed by him. The appellant has not been found guilty for the offence under Section 376 of the I.P.C. Therefore, establishment of sexu