Calcutta High Court (Appellete Side)

Irfan Alam vs State Of West Bengal & Anr on 6 June, 2022

Form J(2)         IN THE HIGH COURT AT CALCUTTA
                     Criminal Appellate Jurisdiction
                               Appellate Side
Present :
The Hon'ble Justice Bibek Chaudhuri

                          C.R.A. 440 of 2018

                              Irfan Alam
                                  Vs.
                     State of West Bengal & Anr.

For the Appellant        :   Mr. Mohinoor Rahaman, Adv.
                             Ms. Maria Rahaman, Adv.
                             Ms. Iqra Rahaman, Adv.

For the State             : Mr.Avishek Sinha, Adv.


Heard on                 : 06.06.2022

Judgment On              : 06.06.2022.

Bibek Chaudhuri, J.

This is an appeal filed by the convict of Special Case No.5 of 2018

assailing the order of conviction dated 30 th July, 2018 for committing

offence under Section 363 of the Indian Penal Code and the order of

sentence of rigorous imprisonment for 3 years with fine and default

clause for the offence punishable under Section 363 of the Indian Penal

Code.

Ultadanga Police Station Case No.15 dated 15 th January, 2018 was

registered on the basis of a written complaint filed by one Rani Begam,

mother of the minor victim girl stating, inter alia, that the victim being

her daughter was aged about 14 years and a student of Class-VI on the

date of lodging F.I.R. Since 14 th January, 2018 she was missing. The

de-facto complainant conducted search at all possible places but could

not find her. It is alleged in the written complaint that one Irfan Alam

used to reside in their house on rent and the said Irfan tried to develop

some relationship with the said daughter of the de-facto complainant

with ill motive. The de-facto complainant suspected that her daughter

was enticed by the said Irfan Alam and he took her away to some

unknown place with ill motive. The materials on record shows that

initially the case was registered under Section 366 A of the Indian Penal

Code. However, charge-sheet was submitted against the accused under

Section 366A/376(2)(i) of the Indian Penal Code and Section 6 of the

POCSO Act. During trial, the learned Special Judge, First Court at

Sealdah found on appreciation of evidence that prosecution failed to

bring home the charge under Section 366A/376(2)(i) of the Indian Penal

Code and Section 6 of the POCSO Act.

However, the learned Trial Judge came to this conclusion that the

prosecution was able to prove ingredients of offence of kidnapping

contemplated in Section 361 of the Indian Penal Code and applying

Section 222 of the Code of Criminal Procedure, the appellant was

convicted for committing offence under Section 363 of the Indian Penal

Code. He was accordingly sentenced to suffer rigorous imprisonment

with fine and default clause.

At the outset I like to record that the State has not come up with a

counter appeal assailing the judgment and order of acquittal passed in

favour of the accused under the charge of Section 366A/376(2)(i) of the

Indian Penal Code and Section 6 of the POCSO Act. Therefore, the duty

of this Court is limited to consider as to whether the learned Trial Judge

correctly recorded the order of conviction and sentence against the

appellant for the offence under Section 363 of the Indian Penal Code.

It is not in dispute that the victim girl went away with the

appellant on 14th January, 2018 at about 7:30 p.m. from her house and

also from the lawful custody of her guardian with the appellant to Digha.

Both of them took accommodation in a hotel, under the name and style

of hotel 'Mayuri' at Digha.

It is also admitted that the brothers of the appellant were informed

that the victim girl and appellant were in Digha and immediately they

went to Digha, took both of them under their custody and produced

them before the police attached to Ultadanga P.S. without any delay.

Immediately after the victim being produced, on the prayer of the

Investigating Officer her statement was recorded under Section 164 of

the Criminal Procedure Code on 17 th January, 2018. In her statement

she stated that she did not like to stay in her house and she voluntarily

left her house. Nobody took her away to anywhere. Thus, in her initial

statement recorded under Section 164 of the Criminal Procedure Code,

the victim girl did not implicate the accused for committing offence

under Section 361 of the Indian Penal Code.

It appears from the record that the victim was subsequently sent

to the Child Care Home by the C.W.C. Subsequently, after a lapse of 12

days on 29th January, 2018 she was again brought before the learned

Magistrate for recording her statement under Section 164 of the Criminal

Procedure Code for the second time. In the second statement, the

victim stated on oath that the accused threatened her with dire

consequences and being afraid she went to Digha with the accused.

Both of them stayed in a hotel and the accused committed sexual

intercourse with her.

During trial, prosecution examined as many as 10 witnesses,

amongst them the victim deposed in the Trial Court as P.W.1. P.W.2 is

the mother of the victim. P.W.3 is her father. P.W.4 is the owner of the

hotel Mayuri at Digha. P.W.5 and P.W.8 are Medical Officers who

medically examined the victim girl on 30 th April, 2018 and 16th January,

2018. P.W.6 is another Doctor who examined the accused to ascertain

as to whether he is capable for sexual intercourse or not. P.W.7 is a

neighbour of the family of the victim and P.W.10 is the Investigating

Officer of the case.

Amongst the witnesses, the most important witness is P.W.1, the

victim of the case.

If the victim's evidence is found to be trustworthy, unblemished,

cogent and truthful, on the basis of sole testimony of the victim Court

can record the order of conviction against the appellant. In the instant

case it appears from the impugned judgment that Trial Court was not in

a position to accept the evidence of the victim girl as trustworthy and

truthful account of the incident. For this reason he recorded the order of

acquittal of the charges under Section 366A/376(2)(i) of the Indian

Penal Code and Section 6 of the POCSO Act. However, the Trial Court

found on appreciation of evidence that the prosecution was able to prove

that the appellant had committed an offence under Section 361 of the

Indian Penal Code.

Surprisingly enough the learned Trial Court failed to consider that

Section 366A is also a kind of kidnapping under special circumstances

when a minor girl is induced by the offender with intent that such girl

may be, or knowing that it is likely that she will be, forced or seduced to

illicit intercourse with another person. The learned Trial Judge

disbelieved the case of the prosecution that the victim was induced to

illicit intercourse by the appellant because of the fact from the medical

evidence it was ascertained that the victim was habituated to sexual

intercourse. Thus, it was not proved that the appellant seduced her to

illicit intercourse.

Be that as it may, in order to bring home the charge under Section

366A of the Indian Penal Code, the prosecution has the bounden duty to

prove the initial ingredient of offence under Section 361 of the Indian

Penal Code. In the instant case, the victim unequivocally stated in her

statement under Section 164 of the Criminal Procedure Code that she

left her house on her own accord and nobody induced her to leave the

custody of her lawful guardian.

In State of Haryana Vs. Raja Ram reported in AIR 1973 SC

819, the Apex Court had the opportunity to discussed the scope and

ambit of the words "take out of keeping". According to the Hon'ble

Supreme Court, persuasion by the accused persons which creates

willingness of the minor to be taken out of the keeping of the lawful

guardian would be sufficient to attract the Section and consent of such

minor is immaterial. Paragraph 8 of Raja Ram's judgment (supra) is

relevant and reproduced below:-

"8. The approach and reasoning of the Learned Single Judge is

quite manifestly insupportable both on facts and in law. It clearly

ignores important evidence on the record which establishes beyond

doubt that the prosecutrix had been solicited and persuaded by Raja

Ram to leave her father's house for being taken to the Bhishamwala

well. Indeed, earlier in his judgment the Learned Single Judge has

himself observed that according to the statement of the prosecutrix, on

receipt of Raja Ram's message as conveyed through his daughter Sona,

she contacted Raja Ram during day time in his house and agreed with

him that she (the prosecutrix) would accompany him (Raja Ram) to go

to Bhishamwala well at midnight to meet Jai Narain, as the other

members of her family would be sleeping at that time. If, according to

the Learned Single Judge, it was in this background that the prosecutrix

had left her father's house at midnight and had gone to the house of

Raja Ram from where she accompanied Raja Ram to the Bhishamwala

well, it is difficult to appreciate how Raja Ram could be absolved of his

complicity in taking the prosecutrix out of the keeping of her father, her

lawful guardian, without his consent. It was in our opinion, not at all

necessary for Raja Ram, himself to go to the house of the prosecutrix at

midnight to bring her from there. Nor does the fact that the prosecutrix

had agreed to accompany Raja Ram to Bhimshamwala well take the

case out of the purview of the offence of kidnapping from lawful

guardianship as contemplated by Section 361, I.P.C. This is not a case

of merely allowing the prosecutrix to accompany Raja Ram, without any

inducement whatsoever on his part, from her house to Bhimshamwala

well, Section 361 I.P.C. reads:

"361 : Kidnapping from lawful guardianship :

Whoever takes or entices any minor under sixteen years of age if a

male, or under eighteen years of age if a female, or any person of

unsound mind, out of the keeping of the lawful guardian of such

minor or person of unsound mind, without the consent of such

guardian, is said to kidnap such minor or person from lawful

guardianship.

Explanation.- The words 'lawful guardian' in this Section include

any person lawfully entrusted with the care or custody of such

minor or other person.

Exception.- This section does not extend to the act of any person

who in good faith believes himself to be the father of an

illegitimate child, or who in good faith believes himself to be

entitled to the lawful custody of such child, unless such act is

committed for an immoral or unlawful purpose."

That object of this section seems as much to protect the minor

children from being seduced for improper purposes as to protect

the rights and privileges of guardians having the lawful charge or

custody of their minor wards. The gravamen of this offence lies in

the taking or enticing of a minor under the ages specified in this

section, out of the keeping of the lawful guardian without the

consent of such guardian. The words "takes or entices any

minor.....out of the keeping of the lawful guardian of such minor"

in S. 361, are significant. The use of the word "keeping" in the

context connotes the idea of charge, protection, maintenance and

control: further the guardian's charge and control appears to be

compatible with the independence of action and movement in the

minor, the guardian's protection and control of the minor being

available, whenever necessity arises. On plain reading of this

section the consent of the minor who is taken or enticed is wholly

immaterial: it is only the guardian's consent which takes the case

out of its purview. Nor is it necessary that the taking or enticing

must be shown to have been by means of force or fraud.

Persuasion by the accused person which creates willingness on the

part of the minor to be taken out of the keeping of the lawful

guardian would be sufficient to attract the section."