Gauhati High Court
Mihir Das vs State Of Tripura on 4 January, 2006
Equivalent citations: 2006CRILJ1500, (2007)1GLR392
JUDGMENT A.B. Pal, J.
1. The judgment dated 29-8-1998 passed by the learned Addl. Sessions Judge, Belonia, South Tripura in Sessions trial No. 68(ST/B) of 1997 convicting the appellant Mihir Das under Section 366 of Indian Penal Code (for short, ' IPC') and sentencing him to suffer RI for 3 years and to pay a fine of Rs. 3,000/- with default stipulation to suffer RI for 6 months more stands impugned in the present appeal.
2. The prosecution version is that on 10-12-1996 at about 10-30 am, Pampi Bhowmik, a minor daughter aged 16 years of the informant Dhanonjoy Bhowmick went to Kanchannagar High school to appear in Madhyamick examination. The examination was over at 1-30 p.m. whereafter she left the school and proceeded towards her house like other students. On the way, the appellant who was her close neighbour met her for a talk when a Maruti van coming from western direction stopped near them. One door of the vehicle opened with a youngman and the driver (their identity remained un-disclosed) inside. It is alleged that the appellant forced her inside the vehicle which had immediately speed away. She could raise no cry for help as the appellant gagged her mouth with handkerchief. When the vehicle reached a place known as Kalirbazar, the main accused Pulak Das, who fled from trial later, joined them in the vehicle. They reached Sonamura where she was compelled to stay for a day in a house of one Sudhangshu Sarkar (not examined). On the following day, on 11-12-1996, she was brought to Agartala in a house at College tilla (none of the house inmates examined) and on 12-12-1996, she was again brought back to Sonamura. On 13-12-1996, she was taken to Bangladesh where she was compelled to stay in a house for 20/22 days. During her stay in Bangladesh, she was compelled to write some love letters and agree for joint photographs with accused Pulak Das. Pulak, her boy friend, tried to persuade her to marry him but she did not agree. She was again brought back to Sonamura and after a day taken back to Bangladesh. On 20-1-1997, she was again taken to Sonamura and then produced in the office of the Communist party of India (Marxist) to hand her over to her father. In her statement, she alleged that when she was brought to Agartala and stayed in a house she had seen Millan Das, the father of Pulak Das giving money to his son. Thus, investigation was launched and on completion whereof chargesheet was filed against Pulak Das, Mihir Das and Milan Das. The charge was framed against them under Sections 366 and 109, IPC to which all of them pleaded not guilty. After framing of charge, accused Pulak Das absconded and in his absence, the proceeding continued against other two accused persons, namely, Mihir Das and Milan Das. Learned trial Court by the impugned judgment acquitted Milan Das but convicted Mihir Das as noted above which has been assailed in the present appeal.
3. I have heard Mr. A.C. Bhowmik, learned Counsel for the appellant and Mr. A. Ghosh, learned PP-in-charge for the State.
4. Learned trial Court examined 11 witnesses including the investigating police officer and placed reliance on 5 exhibited documents including the FIR, statement of the victim girl recorded under Section 164, Cr. P.C. school certificate about her age, admission register and hand sketch map. It is established and undisputed fact that the appellant Mihir Das and other accused Pulak Das were close neighbours of Pampi, the victim girl and, therefore, they were closely known to her. Upon careful appreciation of the oral and documentary evidence, the learned trial Court came to the definite finding that Pampi had love affair with accused Pulak and following that love affairs the accused persons had taken her away with her consent. The relevant part of the impugned judgment reads as follows:
Anyway, it appears to me that the alleged victim girl pampi had some love affairs with accused Pulak and so following that love affairs the accused persons taken her away with her consent but her consent appears to have for not going out of the guardianship of her father without her father's consent.
This observation of the learned trial Court was strengthened by a bunch of love letters allegedly written by Pampi to accused Pulak Das though, according her version, she had to write those letters under his dictation during her stay in Bangladesh. The language of several letters expressing emotion and passion of a young girl for her lover and the different types of papers used for writing such letters cannot give any impression that those were written at the dictation of others within a short spell of time. Because of that reason, the trial Court was inclined and in my view very correctly that she was deeply in love with Pulak Das which emboldened him to take a plunge for taking her away and forcing her to marry. But taking into, consideration her statement that she did not agree to the proposal to marry Pulak Das in spite of long persuasions during her stay in different places goes to show that though she had gone with the appellant and Pulak Das with her consent but she did not intend to finally walk out of the guardianship of her father without his consent. She turned down the proposal of marriage as that would have amounted to going out of her father's guardianship and for that reason it has to be held that the kidnapping had taken place not when she had, on her own consent, went to meet her boy friend but when she was given the marriage proposal and the same having been turned down she was detained against her will. The observations and decision of the learned trial Court necessarily calls for a closer examination as to the exact point of time when kidnapping in strict sense of the term had taken place.
5. In order to arrive at such a decision, learned trial Court very correctly settled the other important questions regarding the age of the victim girl who was reading in class-X at the time of alleged occurrence. The admission register of the school and birth certificate produced by the prosecution recorded 5-6-1980 as the date of her birth showing that she was a little over 16 when the occurrence had taken place. After holding that she was a minor being below 18 years and, therefore, her consent is immaterial in a case of kidnapping such as this, the learned trial Court proceeded to determine when the alleged kidnapping had taken place. After elaborately discussing the law on the point particularly the decision of the Supreme Court in Shyam and Anr. v. The State of Maharashtra reported in (1995) Cr LJ 3974 and the other decision of the Supreme Court in State of Haryana v. Raja Ram , the learned trial Court made an attempt to reconcile, according to him, the apparently conflicting views expressed in the said judgments and placed reliance on the ratio laid down by the Apex Court in State of Rajasthan v. Ram Narain . According to the learned trial Court, though she was willing and had consent to go with the appellant and the other accused, she had no consent to go out of the guardianship of her father and, therefore, the kidnapping had taken place from very moment when she was forced into the vehicle by the appellant. The consent being immaterial for a minor, it has been held by the learned trial Court that the appellant herein was guilty of kidnapping as she had no consent or willingness to walk out of the guardianship of her father.
6. It may be noticed that the learned trial Court did not believe the story that the appellant forced her into the vehicle and gagged her while they were proceeding towards Kalirbazar where the main accused Pulak Das, the boy friend of the girl, embarked into the vehicle. In other words, learned trial Court believed that the girl had willingly boarded the vehicle and travelled with the appellant. The identity of the other youngman who was inside the vehicle or of the driver has not been disclosed and so none of them could be booked in the present case. According to her statement, she was first taken to a house in Sonamura but the owner of the house or none of the inmates have been examined. On 11-12-1996, she was taken to a house in College tilla but none of that house inmates has been cited as witness. She complained that she was confined in a house at College tilla which was located in a thickly populated area. In all these places where she was kept, she has not disclosed anything about the conduct of Mihir Das or Pulak Das except that Pulak Das had approached her to marry him which she declined. No allegation has surfaced in her statement that Mihir Das had made any attempt to compel her to marry Pulak Das. She rather stated that Mihir was not with them when she and Pulak had gone to Bangladesh. There is no allegation of any physical or mental pressure by the appellant herein except the allegation that Pulak Das, the absconding accused, forced her to write some love letters in Bangladesh and some photographs to be taken there though this story has not been believed by the learned trial Court. A cursory glance over the photographs and plain reading of few love letters would give an unmistakable impression that she was deeply in love with the absconder. In such facts and circumstances the question which falls for consideration is at what point of time the alleged offence of kidnapping had started to take place and whether the appellant Mihir Das was responsible for the same. Section 361, IPC which defines kidnapping is quoted below for understanding the legal position more accurately.
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.
The most important question is when a minor can be said to have been taken out of the keeping of the lawful guardian in a given facts and circumstances of a case. The proved fact that has emerged from the recorded evidence is that the girl, aged more than 16, was in love with Pulak Das and the appellant Mihir being a neighbour was closely known to her. Ratan Chandra Sen (P.W. 4) is an independent witness who was waiting in front of Agriculture store at Kanchannagar. At about 1-30 p.m., he noticed a Maruti vehicle coming from western side when a young boy and another. young girl coming from Kanchannagar direction boarded the vehicle which had sped away. This statement does not at all indicate that the appellant applied any force on her. There is no doubt that the young boy and girl were the appellant herein and the victim girl. Thus, she on her own consent had travelled with the appellant knowing fully well that she was going to meet her boy friend, Pulak Das. If a minor girl travels with a closely known neighbour to meet her boyfriend, it cannot be said that it amounts to taking her out of the keeping of her lawful guardian. In my considered view, it cannot be said that at the time when she along with the appellant boarded into the vehicle and travelled towards Sonamura via Kalirbazar where Pulak Das had joined them, the offence of kidnapping did not take place. As has to be correctly appreciated, the kidnapping can be said to have taken place only when she was detained against her will for the purpose of pressurizing her to agree to the proposal of Pulak Das to many him. In her statement, nowhere she divulged that the appellant put pressure on her to marry Pulak Das or he was responsible for confining her in different places at Sonamura and College tilla, Agartala. On the contrary, she had stated that accused Pulak Das had taken her to Bangladesh where she stayed most of the period for about 20/22 days and the appellant was not with them there. Thus, it cannot be said that the moment when she was forced to remain out of the keeping of her guardian the appellant was with her and put pressure for detaining her in the places at Sonamura, Agartala and Bangladesh. Her allegation that she was forced to be photographed with the accused Pulak Das or write love letters to him has nothing to do with the appellant.
7. The simple fact that has surfaced from the above discussion is that the appellant being the close neighbour and a friend of absconding accused Pulak Das and the victim girl accompanied her in the vehicle for meeting Pulak who might have secret design to marry her by detaining her in certain places for a considerable period. Nothing is there on record to show that apart from helping her to proceed towards Sonamura for meeting her boy-friend, the appellant had any knowledge about the other design or motive of the absconder who later translated his design into action by forceful detention, as alleged by the prosecution. The conduct of the absconder as alleged, however, remains for closer scrutiny during trial against him and nothing said herein shall be taken as expression of any opinion about his conduct.
8. For the above reasons and discussions made above, the appellant cannot be said to be the guilty of kidnapping the victim and consequently, this appeal has merit for acceptance. The appeal is, therefore, allowed setting aside the conviction and sentence imposed by the judgment impugned herein. The appellant shall be set at liberty at once. The lower Court records should be transmitted forthwith with a direction to the learned trial Court to issue process for compelling appearance of the absconder to proceed against him in accordance with law.