'No Evidence That Victim Was Enticed, She Was Fully Aware Of Consequences': Calcutta HC Sets Aside Conviction For Kidnapping Minor

The Calcutta High Court has recently set aside the conviction of an accused for commission of the offence under Section 361 of the IPC (kidnapping from lawful guardianship) after observing that the minor victim was fully aware of the consequences of her going away with the accused and that there is no evidence that she was induced or enticed by the accused. 

Justice Bibek Chaudhuri observed, 

"In the instant case, there is absolutely no evidence that the victim girl was induced or enticed by the appellant. For the reasons stated above and in view of the fact that the victim was fully aware of the consequences of her going away with the appellant, the appellant cannot be held liable under Section 361 of the Indian Penal Code punishable under Section 363 of the Indian Penal Code."

Background 

In the instant case, a minor girl who was a student of Class-VII in the year 2012 was found missing on and from November 15, 2012. When the family members of the minor girl failed to find her in spite of a thorough search, her mother had lodged a missing diary on November 15, 2012 at Burtolla Police Station. However, the police had failed to find the missing girl.

Subsequently, the mother of the victim girl came to know from the friends of her daughter that one Suraj Singh had made her elope and had taken her to some unknown place. Suraj was actively aided and abetted by his uncle, Sanjay Singh. Thereafter, the mother lodged a police complaint on December 7, 2012 against Suraj Singh, Sanjay Singh and others. Thereafter, the accused persons were arrested during investigation and the victim girl was recovered while she was in association with accused Suraj Singh.

After completion of investigation, the police authorities submitted a charge-sheet against the accused persons under Section 366 read with Section 120B of the Indian Penal Code.

Observations 

Pursuant to a perusal of the record, the Court noted that from the statement of the victim girl, it can be ascertained that there was a love relationship between the victim and the appellant. It was further noted that in her statement recorded under Section 164 of the CrPC, the victim had deposed that she did not like to stay with her mother who used to abuse her and frequently assaulted her. Thus, she had voluntarily left with the appellant and had stayed with him in Mumbai for about 15-20 days.

"Neither the victim girl, nor the de facto complainant made any allegation against the appellant to the effect that the victim girl was compelled to marry any person against her will or that she was forced or seduced to illicit intercourse", the Court noted further. 

The Court further observed that the victim girl was 14 years and two months on the date on when she was kidnapped by the appellant after taking into consideration the admission register of the school where the date of birth of the victim girl was recorded as on August 12, 1998.

Justice Chaudhuri acknowledged that in spite of having love relationship with the victim the appellant had no right to take her away out of the keeping of the lawful guardian of the victim without the consent of such guardian. It was further observed that the fact that the victim was tortured by her mother or that she voluntarily left with the appellant would not constitute a valid defence and would not absolve the appellant from the offence of kidnapping.

However, the Court placed reliance on the Calcutta High Court judgment in Sk. Sajid v. State of West Bengal wherein the Court had held that through the victim girl was under 18 years of age on the date of commission of offence, when the prosecution failed to prove that the victim was either induced to go with the accused or that the accused took her away from her lawful guardianship, he cannot be held guilty for committing offence under Section 363 of the IPC. 

Accordingly, the Court allowed the instant appeal on contest and set aside the order of conviction and sentence. 

Case Title: Suraj Singh v. State of West Bengal & Anr

Case Citation: 2022 LiveLaw (Cal) 169

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