Rakesh Kirtonia @ Rakesh Kirtania vs The State Of West Bengal
2022 Latest Caselaw 986 Cal

Form J(2)        IN THE HIGH COURT AT CALCUTTA
                    Civil Appellate Jurisdiction
                               Appellate Side

Present :
The Hon'ble Justice Bibek Chaudhuri

                           CRA 571 of 2016

              Rakesh Kirtonia @ Rakesh Kirtania
                            -Vs.-
                  The State of West Bengal


For the appellant          :   Mr. Ayan Bhattacharjee, Adv.,
                               Mr. Nirmalya Chatterjee, Adv.

For the State              :   Mr. Prasun Kumar Datta, Adv.,
                               Md. Kutubuddin,
                               Mr. Santanu Deb Roy, Adv.

Heard & Judgment on:           04.03.2022.


Bibek Chaudhuri, J.

A minor girl, aged about 15 years on 24 th April, 2012, went to

her Dance School at about 10.00 a.m. However, she did not return

home till late at night. At about 11.00 p.m., the accused informed

over telephone that the said girl was with him and they married to

each other.

The girl being a minor, her grandfather under whose care and

protection the victim girl used to live, lodged a written complaint on

25th April, 2012 before the Officer-in-Charge, Jadavpur Police Station,

Kolkata.

On the basis of the said complaint, Jadavpur Police Station Case

No. 208 dated 26.04.2012 was registered under Sections 363/366A of

the Indian Penal Code.

The investigation culminated in filing charge-sheet against the

appellant under Sections 363/366A of the Indian Penal Code. Since

the offence under Section 366A of the Indian Penal Code is exclusively

triable by the Court of Sessions, the case was committed and

subsequently transferred to the Learned Additional Sessions Judge,

17th Court at Alipore for trial and disposal. On conclusion of trial, the

Learned Trial Judge convicted the accused and handed down

punishment for rigorous imprisonment for four years with fine and

default clause for the offence punishable under Section 363 of the

Indian Penal Code and also rigorous imprisonment for five years with

fine and default clause for the offence punishable under Section 366

of the Indian Penal Code. The said judgment and order of conviction

and sentence is assailed in the instant appeal. Mr. Ayan

Bhattacharjee, Learned Advocate on behalf of the appellant submits

that in the instant case, the evidence of the victim girl is of prime

importance. All other witnesses except the Investigating Officers

heard the incident either from the victim or over phone allegedly

made by Rakesh to the de facto complainant. Accordingly, their

evidence is in the nature of hearsay.

The victim girl stated in her evidence that she used to stay with

her grandfather at I.A.C.S. Staff Quarters at the relevant point of

time. It is also ascertained from her evidence that she and the

appellant were students in a Dance School under the name and style

of I.D. Dance Academy at Kasba. As they used to learn the art of

dancing together, friendship developed between them. The appellant

used to tell her to go and live with him together. On 24 th April, 2012,

the victim girl left her home and met Rakesh on the road. Then they

went to Howrah Station. They voluntarily went to Digha by a train

from Howrah. Rakesh married her putting vermilion on her forehead

in a temple at Digha. On that very date, i.e., 24 th April, 2012, they

returned to Howrah Station. Then Rakesh took her to the house of

one of his relatives at Madhyamgram. They remained there together

for about one and half days. The victim girl informed her family

members that she was residing at Madhyamgram and she wanted to

return to her house. Then the victim girl was recovered by Police

attached to Jadavpur Police Station. In course of cross-examination,

she candidly admitted that she had love relation with the accused.

Previously also she visited the house of Rakesh. She used to call the

mother of Rakesh as 'Maa'. She had an intention to be a member of

the family of Rakesh and voluntarily left her grandfather's house on

24th April, 2012. In cross-examination, she admitted that she left the

house of her grandfather with Rakesh on her own volition and will.

Placing reliance to a judgment of this Court in the case of Bachhu @

Adarsha Panda -Vs.- State of West Bengal reported in 2014 Vol.

3 CCLR Cal 809 it is submitted by Mr. Bhattacharjee that the victim

girl on her own accord and volition left the custody of her grandfather

with the appellant. It is also found from her evidence as well as the

evidence of other witnesses that they performed marriage in a temple

at Digha. On the same day, they returned to Kolkata and stayed for

one and half day at Madhyamgram in the house of her relative. It is,

therefore, clear that the victim voluntarily left the custody of her

grandfather due to love for the appellant and both of them proceeded

to a temple at Digha and entered into a matrimonial alliance. It is

found from the evidence on record that the victim and the appellant

had voluntarily entered into a matrimony by performing marriage

ceremony in a temple at Digha. There is nothing on record to show

that the appellant had dishonestly undergone such ceremony in the

temple to induce P.W. 1 into cohabitation. In Bachhu @ Adarsha

Panda (supra) on similar factual circumstances the victim and the

accused after entering into a matrimony cohabited with each other.

In the instant case, however, there is no evidence that after marriage

the appellant cohabited with the victim. On the graver circumstances

than the case in hand a Coordinate Bench in Bachhu @ Adarsha

Panda (supra) held that the prosecution failed to establish that at

the time of cohabitation, the appellant knew or had reason to believe

that the victim was not his wife. Therefore, this Court held that the

prosecution failed to prove the charge under Section 366 of the Indian

Penal Code.

Mr. Bhattacharjee next draws my attention to another judgment

of the Division Bench of this Court in Fulchand Tepriwalla -Vs.-

Emperor reported in AIR 1932 Calcutta 442. It was held by this

Court in the said report that the word 'will' referred to in the first part

of Section 366 means the will of the girl and certainly does not mean

the will of her guardian. It was observed by the Division Bench of this

Court in the aforesaid decision:-

"The mere wording of Section 366 shows that that cannot

possibly be the meaning of the Section. The section deals with

both kidnapping and abduction, with the result that it is apt to

mislead people who do not read it carefully. But it seems to us

quite clear that the "will" referred to in the first part of the

section means the will of the girl and certainly does not mean

the will of her guardian".

Considering the factual scenario of the instant case and placing

reliance on the aforesaid reported judgments, this Court is also of the

view that the Learned Trial Judge was wrong in convicting the accused

under Section 366 of the Indian Penal Code.

However, it is not in dispute that the victim was a minor on the

date of commission of offence. She was enticed by the accused to

leave the custody of her grandfather, the de facto complainant, since

deceased. The aforesaid circumstances as established through

prosecution evidence establishes an offence under Section 363 of the

Indian Penal Code. The victim had left with the appellant without the

knowledge and consent of her grandfather on being encouraged by

the accused to live a life together.

Thus, the evidence on record clearly establishes the charge

under Section 363 of the Indian Penal Code. Accordingly, conviction

under Section 366 of the Indian Penal Code is set aside and this Court

also finds the appellant guilty for committing offence under Section

363 of the Indian Penal Code.

Now the question of sentence.

The appellant was a young boy of 21 years on the date of

commission of offence. He is now aged about 29 years. The incident

took place about ten years back. The appellant has already suffered

imprisonment for one year five months and 17 days as on this date.

Therefore, I reduce the sentence imposed upon the

appellant and direct to suffer imprisonment for the period already

undergone and to pay fine of Rs.1,000/-, in default, to suffer rigorous

imprisonment for one month more.

Accordingly, the appeal is allowed in part.

The appellant is directed to surrender before the Court of

the learned Chief Judicial Magistrate at Alipore within two weeks from

the date of communication of the order to the Court below and make

payment of fine, in default, suffer sentence of imprisonment as

directed above for committing offence under Section 363 of the Indian

Penal Code.

Let a copy of this judgment be supplied to the learned

advocate on record for the appellant duly countersigned by the

Assistant Court Officer of this Court free of cost.

A copy of this judgment also be sent to the learned Court

below for information along with lower Court record.

[Bibek Chaudhuri, J.]

Srimanta/Suman A. R. (Court)