Recently, the Calcutta High Court overturned a 2007 conviction under Section 363 of the Indian Penal Code for kidnapping a minor girl, holding that the prosecution had miserably failed to prove that the victim was taken from the “lawful guardianship” of Chhanda Bibi, the woman with whom she had been residing. Justice Chaitali Chatterjee Das allowed the appeal and set aside the judgment and order of conviction passed by the Additional District and Sessions Judge, Fast Track Court No. 7, Bichar Bhawan. The Court observed that “Chhanda Bibi cannot be described as a lawful guardian of the victim and the victim voluntarily went with the accused… Therefore clear inconsistencies are glaringly visible regarding the guardianship of Chhanda Devi for which her evidence adduced by her loses its credentials.”
The case stemmed from a criminal prosecution initiated on the basis of a police complaint alleging that a minor girl had been taken to a red-light area under false pretences, leading to registration of offences under Sections 363 and 373 of the Indian Penal Code. During the investigation, charges were framed including Section 363 of the IPC and Section 373 of the IPC. While the trial court found insufficient evidence to sustain the graver charge under Section 373 of the IPC, it convicted the accused under Section 363 of the IPC on the premise that the minor had been taken from lawful custody. Challenging this finding, the accused preferred an appeal before the High Court, bringing into question the validity of the conviction and the prosecution’s failure to establish essential ingredients of the offence.
Contentions of the Appellant:
The Appellant argued that the entire prosecution story was fabricated. The Counsel pointed out the complete absence of any General Diary entry showing when the police party left the station on receiving source information, a mandatory requirement, and the failure to examine any local club member or independent witness to corroborate the alleged rescue. The Counsel highlighted that the victim herself consistently stated she travelled with the accused on a bicycle and later by bus, making forcible kidnapping impossible. She emphasised the unexplained delay in medical examination, the lack of any seizure from the spot, and the fact that even the club’s involvement was never proved through any witness from the premises. The prosecution, she submitted, had failed to prove its case beyond reasonable doubt, rendering the conviction unsustainable.
Contentions of the Respondent:
The State defended the conviction with equal vigour. The Counsel contended that the victim, a minor, was under the lawful custody of Chhanda Bibi, and the accused had taken her away from that custody on the pretext of purchasing garments, thereby attracting the ingredients of Section 363 of the IPC. The State relied on the testimony of nine prosecution witnesses, including the victim, Chhanda Bibi, and the police raiding party, asserting that the trial court had correctly appreciated the evidence and that no interference was called for.
Observation of the Court:
Justice Chaitali Chatterjee Das observed that “Chhanda Bibi cannot be described as a lawful guardian of the victim and the victim voluntarily went with the accused. If the evidence of Chhanda Bibi is relied on it would appear there was a gap of three days from the day she left but from the evidence it can be found that on the very day morning she left and was rescued in the late evening. Therefore clear inconsistencies are glaringly visible regarding the guardianship of Chhanda Devi for which her evidence adduced by her loses its credentials.”
The Court observed that the prosecution case rested entirely on the question of whether the minor victim was taken away from the “lawful guardianship” of Chhanda Bibi, yet the evidence on record revealed glaring and irreconcilable inconsistencies regarding the exact nature and duration of the girl’s stay in Chhanda Bibi’s house. The victim deposed that she had been residing there for nearly two years after her mother left her in compelling circumstances of poverty, with no further contact. In sharp contrast, Chhanda Bibi claimed the girl had been brought by her eldest daughter only six months earlier and had worked as an unpaid maidservant.
The Court noted that Chhanda Bibi herself admitted she had no knowledge of the victim prior to her daughter bringing her and had previously allowed the girl to stay for two to three months on an earlier occasion, creating multiple contradictory versions within the same testimony that completely eroded its reliability.
The Bench held that Chhanda Bibi’s conduct after the girl left on 3 November 2003 further demolished any claim of lawful guardianship. Despite knowing the victim had gone with the appellant on the pretext of purchasing garments, Chhanda Bibi made no inquiry for three full days, lodged no missing person complaint, informed neither the victim’s mother nor any relative, and never attempted to contact the accused despite his known presence in the locality as a cycle-repair shop owner.
The Court emphasised that such complete inaction and indifference was wholly inconsistent with the behaviour expected of a lawful guardian responsible for a minor girl, rendering the entire foundation of the charge under Section 363 of the IPC unsustainable.
Further, the Court emphasised that the victim’s own testimony categorically established prior acquaintance with the appellant and a completely voluntary act on her part. She deposed that the accused had proposed marriage to her, which she had refused, and that she had accompanied him willingly first on a bicycle from Hatiara bus stand and later by bus to the place in question, without any protest, force or resistance throughout the day.
The Bench observed that she never alleged kidnapping or forcible taking and, in fact, admitted she had gone with him after he expressed his intention to buy her new garments on the eve of Eid. This voluntary companionship, coupled with her prior familiarity with the accused, struck at the root of the offence of kidnapping from lawful guardianship.
The Court observed that the alleged raid and rescue operation in Sonagachi was itself shrouded in procedural infirmities that cast serious doubt on the prosecution's story. No General Diary entry was made before the police party left the station despite receiving source information; the Investigating Officer admitted he recorded the GD only after returning from the spot at 12.35 a.m., statements of the lady constables were never recorded under Section 161 of the CrPC, and no independent club member or local resident corroborated the claim that the girl was rescued from inside a building after raising an alarm. Even the local witness, Sanjay Das, a resident of the red-light area, admitted he never heard any cry and was not present when any club members allegedly responded to the victim’s shouts.
The Court held that once the trial court had already acquitted the appellant of the graver charge under Section 373 of the IPC for want of evidence of bargaining or selling the minor for prostitution, the remaining conviction under Section 363 of the IPC could not be sustained on the same shaky evidence. The Bench noted that the prosecution had miserably failed to prove the most essential ingredient, that the victim was removed from the lawful custody of any guardian without consent, and that the trial court had wrongly convicted the appellant merely on the basis of the girl’s minority while ignoring the complete absence of proof of lawful guardianship.
The decision of the Court:
In light of the foregoing discussion, the Court allowed the criminal appeal, set aside the judgment and order of conviction and sentence dated 6/8 June 2007 passed by the trial court under Section 363 of the IPC, and directed the immediate release of the Appellant from his bail bond.
Case Title: SK.Samad Vs. The State of West Bengal
Case No.: CRA 377 of 2007
Coram: Hon'ble Mr. Justice Chaitali Chatterjee Das
Advocate for the Petitioner: Adv. Sibangi Chattopadhyay, Adv. Momotaj Begum, Adv. Sourav Mondal
Advocate for the Respondent: Adv. Anand Keshari, Adv. Mamata Jana
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