Minor Victim Voluntarily Went With The Accused: Calcutta High Court Sets Aside Conviction U/S 363 IPC

The Court was hearing a criminal appeal challenging the judgment of conviction passed by the trial court under Section 363 IPC, while acquitting the accused of the charge under Section 373 IPC.

A Bench comprising Justice Chaitali Chatterjee Das observed that “the prosecution has failed to prove the charge under Section 363 IPC and the Learned Court only considering the age of the victim passed such an order of conviction of taking her from lawful custody when acquitted the accused form the charges under Section 373 IPC and thereby it warrants interference”.

Advocate Sibangi Chattopadhyay appeared for the appellant, while Advocate Anand Keshari appeared for the State.

Background

The prosecution's case originated from a police operation wherein a minor girl was allegedly rescued from a red-light area along with the accused. It was alleged that the accused had taken the victim from a woman named Chanda Bibi on the pretext of purchasing garments and intended to exploit her.

Upon completion of the investigation, a charge sheet was filed under Sections 363 and 373 IPC. The trial court acquitted the accused of the charge under Section 373 IPC but convicted him under Section 363 IPC, holding that the victim had been taken from the lawful custody of her guardian.

The appellant challenged the conviction on the ground that the prosecution had failed to prove the essential ingredients of kidnapping, including lawful guardianship and lack of consent.

Court’s Observation

The Court undertook a comprehensive scrutiny of the evidence of the victim and other witnesses, particularly Chhanda Bibi, with whom the victim was allegedly residing.

It found that while the minority of the victim stood established, the prosecution failed to prove that she was under the lawful guardianship of Chhanda Bibi. The Court noted multiple inconsistencies in the evidence regarding the nature and duration of the victim’s stay.

The Court observed that the victim was described inconsistently as a friend of the daughter of Chhanda Bibi, as a maid servant without remuneration, and as a person residing for varying durations ranging from six months to two years. These contradictions, according to the Court, cast serious doubt on the prosecution's case.

Further, the conduct of Chhanda Bibi was found to be inconsistent with that of a lawful guardian. The Court noted that despite the victim being absent, no missing persons complaint was lodged, no enquiry was made, and no attempt was made to contact either the victim’s family or the accused.

In this regard, the Court observed that “the above facts and circumstances evince that Chhanda Bibi cannot be described as a lawful guardian of the victim and the victim voluntarily went with the accused.”

The Court also found that the victim was acquainted with the accused before the incident and that there was no allegation of force or coercion. The evidence indicated that the accused had expressed an intention to marry the victim and that she had voluntarily accompanied him.

It further noted contradictions regarding the timeline of events. While one version suggested that the victim remained missing for three days, the evidence demonstrated that she was rescued on the same day, thereby undermining the credibility of the prosecution's witnesses.

The Court also observed that the surrounding circumstances, including the conduct of the victim and absence of protest, did not support the prosecution’s case of kidnapping. It concluded that the essential ingredient of “taking” from lawful guardianship was not established, and mere proof of minority was insufficient to sustain a conviction under Section 373 IPC.

“A girl of that age growing up in an environment where country Liquor is sold, residing with a lady who is not her relative, and her brothers and sisters are footpath dwellers, developed acquaintance with the appellant, left the house of Chanda Biwi did not raise objection when taken in a bicycle from there by a Bus to a place not known to her. Therefore, it can never be said that she was taken from the lawful custody of Chhanda Devi as she voluntarily went with him and Chhanda Devi was not a custodian or guardian of the victim girl”, the Court concluded.

Conclusion

The High Court held that the prosecution had failed to prove the charge under Section 363 IPC and that the trial court erred in convicting the appellant solely based on the victim’s age. Accordingly, the Court set aside the judgment and order of conviction and allowed the appeal, directing the release of the appellant from the bail bond.

Cause Title: Sk. Samad v. State of West Bengal (Neutral Citation: 2026:CHC-AS:550)

Appearances

Appellant: Advocates Sibangi Chattopadhyay, Momotaj Begum, Sourav Mondal

Respondent: Advocates Anand Keshari, Mamata Jana

Click here to read/download Judgment