IMPORTANT POINT
The court emphasized the gravity of the offense and the need to prove the elements of the offense beyond reasonable doubt, justifying the maximum punishment based on the nature of the offense and the appellant's conduct and habitual offender status.

JUDGMENT

Sanjib Banerjee, CJ. - The appeal arises out of a judgment of conviction under Section 366 of the Indian Penal Code, 1860. The appellant has been sentenced to the maximum of 10 years' rigorous imprisonment together with a fine of Rs.10,000/-. In default of the payment of the fine, the appellant has to suffer rigorous imprisonment for a further six months.

2. The primary ground urged on behalf of the appellant in assailing the impugned judgment and order of April 27, 2016 is that there is no reason or basis for the maximum punishment being awarded, particularly since there was no harm caused to the four-year-old survivor in question and there can be no dispute that the victim had not been sexually assaulted by the appellant.

3. For the present purpose, the material part of Section 366 of the Penal Code may first be seen. The charge against the appellant was that he had kidnapped or abducted the girl-child in order that she may be forced to illicit intercourse. The material portion of the provision reads as follows:

'366. Kidnapping, abducting or inducing woman to compel her marriage, etc.- Whoever kidnaps or abducts any woman ... in order that she may be forced ... to illicit intercourse ... shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; ...'.

4. It may also be noticed in this context that for somewhat similar offences of procuration of a minor girl under Section 366A of the Penal Code and for kidnapping or abducting anyone in order to subject the person to grievous hurt under Section 367 thereof, the punishment mandated is the same: of a maximum term of 10 years together with fine.

5. For the purpose of the charge brought against the appellant in this case, the prosecution had to prove beyond reasonable doubt that a woman had been abducted or kidnapped by the appellant herein and also that such woman was likely to be forced to illicit intercourse. Both the ingredients had to be demonstrated for the appellant to be convicted.

6. The first information report came to be filed on November 9, 2014 by a village official of the Durbar Shnong of Porla village in the West Khasi Hills District pertaining to the incident that took place earlier that day. The FIR was lodged at the police outpost in Riangdo near Nongstoin. According to the complaint, the four-year-old girl was taken by the appellant herein to a nearby jungle and this act was witnessed by five persons from Porla village, some of whom were returning after church service. The persons managed to chase the appellant down and, according to the FIR, 'caught him red handed.' The evidence later revealed that the girl-child was rescued from the appellant herein and the appellant was taken to the headman of the village where the villagers beat him up before filing the FIR which resulted in the appellant being arrested. The FIR alleged that the appellant herein was a habitual offender.

7. At least five eye-witnesses were called on behalf of the prosecution. Each of the eye-witnesses independently indicated that the appellant herein had carried the girl-child to a ditch deep into the jungle where the appellant had pulled down his trousers and held the girl-child in a pose to commence the sexual assault on her when the chasing party reached the spot. The individual descriptions convey the same sense though some of the eye-witnesses recalled that they noticed that the girl's underpants had also been taken down, while the others, in course of their cross-examination, could not recall whether the girl-child's underpants had been brought down. Indeed, one of the eye-witnesses claimed that the appellant herein was slightly bent on the knees in a position where he was poised to thrust himself forward into the minor girl. A more discerning witness asserted that the appellant had applied lip balm on the vaginal lips of the child to ensure a smoother passage for him.

8. All the eye-witnesses, including the per