IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE Present:

The Hon’ble Justice Prasenjit Biswas C.R.A. 21 of 2015 Balai Kule @ Surajit Kule -Versus-

The State of West Bengal For the Appellant : Mr. Swapan Kumar Mallick, Ms. Sudeshna Das.

For the State : Mr. Saibal Bapuli, Ld. APP Mr. Bibaswan Bhattacharya Hearing concluded on : 20.03.2025 Judgment On : 02.04.2025 Prasenjit Biswas, J:-

1. The challenge in this appeal is to the judgment and order dated

22.12.2014 and 23.12.2014 passed by the learned Additional Sessions Judge, 3rd Court, Tamluk, in Sessions Trial No. 1(07) of 2014 arising out of Sessions Case No. 217(April) 2014 thereby convicted the appellant Balai Kule @ Surajit Kule for the offence punishable under Section 363 of the Indian Penal Code and sentencing him to suffer simple imprisonment for five years and to pay fine of Rs. 2000/- in default to suffer simple imprisonment for two months.

2. This appellant (herein) along with two others namely, Dilip Kule and Suchitra Kule were arrayed to face charge under Section 363/366/34 of the Indian Penal Code to which they pleaded not guilty and claimed to be tried. As a result, trial commenced against them. The co-accused persons were found not guilty and were acquitted from the charges. The present appellant was found guilty of offence under Section 363 of the Indian Penal Code and accordingly his conviction and sentence was recorded by the judgement which is impugned in this appeal.

3. Succinctly, the case before the learned Trial Court was that Arabinda Kule, the father of the victim girl lodged a written complaint before the Kolaghat Police Station through Kolaghat Beat House on 19.11.2011 to that effect that on 10.11.2011 in the morning at about 6.30 A.M. his minor daughter (victim) went to take tuition but she did not return and as such, a GD Entry being no. 299 dated 10.11.2011 was lodged and his daughter was recovered. It is further stated in the written complaint that on 10.11.2011 in the night at about 7 P.M. in absence of his family members the appellant entered inside his house and by enticing her and by using force her daughter was kidnapped once again. Other two accused persons namely, Dilip Kule and Suchitra Kule had taken part in the said offence and assisted this appellant.

4. Over the complaint lodged by the de-facto complainant the concerned Police Station started a case being Kolaghat P.S. Case No. 319 of 2011 dated 19.11.2011 under Sections 363/366/109 of the Indian Penal Code against this appellant and other two accused persons. After completion of investigation charge-sheet was submitted by the Investigating Agency under Sections 363/366/109 of the Indian Penal Code against all the accused persons.

5. In order to prove the case prosecution has cited 11 (Eleven) witnesses and documents were marked as exhibited being exhibit no(s) 1 to 8/1. Neither, any oral nor any documentary evidence was adduced by the side of the defence.

6. Mr. Swapan Kumar Mallick, learned Advocate for the appellant submitted that in the written complaint two dates have been mentioned i.e. 10.11.2011 and 18.11.2011. In the formal FIR the date and hour of occurrence relates to date 18.11.2011 at about 19.00 hours. Although, in the formal FIR date of occurrence of the offence is mentioned as 18.11.2011 but in the written complaint the date of incident are mentioned as 10.11.2011 and 18.11.2011. It is further submitted by the learned Advocate that in cross examination PW1/ de facto complainant stated in his examination in chief that it is not written in the written complaint that the appellant on 18.11.2011 entered in his house and by putting fear and force, he told his daughter that she would act as per his direction, otherwise this appellant would kill her.

7. Learned Advocate further assailed that it would appear from evidence of the victim girl that she told the police that in the morning on 10.11.2011 she voluntary left her house and they did marriage in a temp