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Kidnapping and Abduction are distinct offences.

Comment : In this case the accused was charged u/ss 363 & 366 later on trial it became apparent on evidence that the girl was major hence the charge for 363 had to fail, the prosecution notwithstanding the same sought to sustain the conviction u/s 366 as the same can also be committed b abduction the court negatived the plea held the charge was specificall as regards !idnapping to seduce a girl to get into illicit relations and "#$ %&'(C$ these are two distinct offences) *ence conviction could not be sustained) Considering a lot of time had elapsed the court also refrained from ordering a re+trial on amended charge ,36-.)

#rissa *igh Court %bha a /ena %nd %nr) vs 0tate on 12 "ovember, 1336 45uivalent citations: 1336 ,-. %7$ Cri 6, 1336 I #78 -6 %uthor: C 9al &ench: C 9al /(':;4"$ C)8) 9al, /) 1) $he appellants assail the order of conviction and sentence dated -+<+1333 passed b the %dditional 0essions /udge, 9arla!hemundi in 0essions $rial Case "o) 11 of of 133- i, e) 0essions $rial "o) =/3- :'C where in each of the appellants has been convicted under 0ections 366 and =>6, I9C and has been sentenced under 0ection 366 to undergo 8) I) for tan ears) "o separate sentence has been passed under 0ection =>6, I9C) -) $he case against the appellants is that on 1=+3+1331 while ;anjula 9ani, the victim girl ,9? 3. along with "andana &ebarta ,9? <. were returning from jungle carr ing fire+wood those appellants appeared before them and caught hold of 9? 3, she re5uested them to leave her stating that her marriage has alread been settled at &erhampur) $he appellants did not listen to her re5uest and dragged her) In the process of dragging appellant "o) 1 tore her blouse) ?hen her companions tried to rescue her the appellants threatened them to !ill showing a !nife) $he also threatened 9? 3 to !ill her if she would shout) %t that time Israel 0ingh, ,9? 1. who was pluc!ing tamarind from a nearb tree and 8ebi!a /ena, ,9? =. came there and as!ed the appellants to leave the 9? 3) &ut the did not listen to their re5uest and forcibl made 9? 3 to sit on a motor c cle and too! her to &haliatota gagging her mouth) 0ometime there+after the father and brother of 9? 3 along with some villagers reached at &haliatota and seeing them the appellants left that place) @rom &haliatota the victim was sent to :andahati) #n 16+3+1331 coming to !now that the >) I) C, 8amgiri 9olice 0tation was camping at 9arla!hemundi she came to 9arla!hemundi and orall reported about the occurrence to him) $he #IC reduced the oral report into writing and too! up investigation and ultimatel filed charge+sheet against both the appellants under 0ections

3<-, 3=<,366, =>6/3<, I9C and after commitment the case came to the Court of %dditional 0essions /udge on transfer for trial where the accused persons were charged for the offences under 0ections 3=3, 366 and =>6, I9C to which the pleaded not guilt and claimed to be tried) 3) $he case of the appellant "o) 1 was that 9? 3 was in love with him and when her marriage was settled at another place she wrote a letter to the appellant "o) 1 intimating him that her marriage was going to be solemnised with another person and re5uesting him to somehow prevent the same, and accordingl she volunteered to go with the appellant "o) 1, who too! her to /aharbandh) 0ubse5uent to that the relations of 9? 3 and some of her villagers came there and there was an ocurrence in which members of both the groups sustained injuries and the too! awa the 9? 3 with them) 0ubse5uentl , after deliberation this case has been started with false allegations) $he case of the appellant "o) - is a complete denial of the allegations levelled against him) <) $he prosecution eAamined seven witnesses out of whom 9? 3 is the victim girl, 9?s 1,< and = are witnesses to the occurrence of ta!ing awa the girl forcibl b the appellants and 9? - is a witness to the seiBure of the torn blouse of the victim girl and 9? 6 is the brother of victim girl who rescued the girl from &halia+tota and accompanied her to 9arla!hemundi where 9? 3 lodged the information, 4At) 1 and 9? 6 is the Investigating #fficer) $he appellant "o) 1 eAamined 0olanti /ena as '? 1) *e also produced the letter said to have been written b 9? 3 mar!ed CDE for identification and other documents ,4Ats) % & and C.) $he trial Court after hearing both the sides found that 9? 3 b the date of occurrence was more than 12 ears of age and accordingl ac5uitted the appellants from the charge under 0ection 363, I9C, but convicted them for the offences under 0ection 366, and undar 0ection =>6, I9C and sentenced each of them thereunder as mentioned earlier) =) $he learned counsel appearing for the appelants assails the order of conviction and sentence on the ground that the charge under 0ection 333 having not been established the charge under 0ection 366 for !idnapping the said minor girl with intent that she ma be compelled and will be forced to have illicit intercourse with the appellants is not sustainable) It is also contended that the charge under 0ection =>6, I9C is not sustainable as the evidence to that effect are highl discrepant in nature) 6) It is contended b the learned counsel of the appellants that the appellants having been ac5uitted of the charge under 0ection 363, I9C, on the grounds that the victim was not a minor at the time of the alleged occurrence the charge under 0ection 66 for !idnapping the said minor girl with intent that she ma be compelled and forced to have illicit intercourse with the appellants must also fail) $he learned %dditional :overnment %dvocate, on the other hand, argued in support of the order of conviction and sentence contending that for an offence under 0ection 366 the age of the victim is immaterial) In the above conteAt, before coming to the correctness of the order of conviction and sentence it will be beneficial to loo! at the relevant portion of the charge framed b the trial Court which runs as follows : ,1. $hat ou on 1=+3+1331 at about 2 p) m, at ;ahisa Fhata 9ahada of village "ara anpur !idnapped ;anjula 9eni a female minor under 12 ears from lawful guardianship of 0amai 9ani, her father and thereb committed an offence punishable under 0ection 363, I9C and within m congniBance)

,-. $hat ou on or about the same date, time and place !idnapped a woman 0usila 9ani with Intent that she ma be compelled and will be forced to have illicit intercourse with ou and thereb committed an offence punishable under 0ection 366 of the Indian 9enal Code and within m cogniBance) ,3. $hat ou on or about the same date, time and place committed criminal intimidation b threatening 0usila 9ani with injur to his person and reputation with intent to cause alarm to the said 0usila 9ani and thereb committed an offence punishable under 0ection =>6, I9C and within m cogniBance) @rom the charge framed under 0ection 366 it is clear that the appellants !idnapped one 0usila 9ani with intent that she ma be compelled and will be forced to have illicit intercourse with the appellants) $he charge under 0ection 366, I9C is silent as to whether the victim was minor or not though it reveals that a woman named 0usila was !idnapped with the aforesaid intent) &ut the prosecution case as it appears from the evidence on record was that the appellants !idnapped ;anjula 9ani, the 9? 3, who according to the prosecution was a minor at the time of the alleged occurrence) "one of the witnesses in their evidence before the Court has deposed that an 0usila 9ani was !idnapped on the date of occurrence) It is argued b the learned %dditional :overnment %dvocate that the name of 0usil 9ani has crept into theG charge inadvertentl and as such the same should be read as ;anjula 9ani) $he learned counsel of the appellants also did not dispute the same, ft also appears that the appellants so far have also proceeded with the case that the charge relates to the alleged occurrence relating to ;anjula) In fact out of the charges in three heads the first head of charge is for offence under 0ection 363, I9C) $hat charge clearl reads that the alleged offence was committed relating to the minor girl ;anjula) $hus the circumstances show that the appellants have neither been misled nor an failure of justice occasioned due to the alleged error) %ccepting the contention of the learned %dditional :overnment %dvocate that the name of 0usiia 9ani has crept in due to inadvertence the correctness of the conviction under 0ection 366, I9C is now to be eAamined) @rom a reading of the charge it is clear that the charge was for !idnapping the victim lad and not for abduction $he learned %ssistant 0essions /udge anal sing the evidence on record has come to a conclusion that 9? 3, the victim lad was not a minor on the date of occurrence) In absence of an acceptable evidence adduced b the prosecution to establish the age of the victim girl the trial Court has rightl arrived at the above conclusion on the basis of the electoral role, 4At) %) 0o it is difficult to understand how the learned %ssistant 0essions /udge convicted the appellants for !idnapping the sad victim lad for the purpose contemplated under 0ection 366) I9C) It is well+!nown that !idnapping and abduction are two distinct offences) $he ingredients of the two offences are entirel different) Fidnapping eAcept !idnapping from India is an offence against guardianship) %s defined in 0ection 361, I9C it consists of enticing or removing a minor from the !eeping of the lawful guardian without his consent) %bduction is an offence as defined in 0ection 36-, I9C when a person is b force compelled or b an deceitful means induced to go from an place) In abduction the person abducted ma be a minor or a major) Fidnapping is punishable per se under 0ection 363, I9C) %bduction is not punishable per se and is punishable onl when accompanied b a particular purpose as contemplated under 0ections 3>< to 3=6, I9C) %s !idnapping ma also be for the purpose mentioned in 0ections 36< to 366, I9C those sections deal with both !idnapping and abduction for the purpose stated therein and prescribe the punishment) &ut when a person is specificall charged for the offence of !idnapping a minor girl for being compelled to have illicit

intercourse with a person he cannot be convicted for abducting a woman for the said purpose when it is found on evidence that the victim is not a minor as defined in the Code) It is noticed that the trial Court has failed too draw the distinction between !idnapping and abduction which are two distinct offenses and has fell into error b convicting the appellants under 0ection 366, I9C for !idnapping the victim while ac5uitting the appellants from the charge under 0ection 363) in this conteAt, it ma be mentioned here that in the Charge under 0ection 366, I9C there is no mention whether the victim was a minor or a major) 0ection 366, I9C prescribes punishment for !idnapping as well as abduction committed with the purpose mentioned in that section, therefore, it ma be said that the conviction is for abduction and not for !idnapping) &ut the charge clearl indicates that the appellants were charged for an offence of !idnapping with the intent to compel the victim to have seAual intercourse with them) $herefore, now it cannot be said that the charge was for abducting the said victim for the aforesaid purpose) $herefore, the conviction and sentence passed under 0ection 366, I9C cannot be sustained) 6) $he learned counsel of the appellants further contended that the evidence about the alleged threats given to the victim as welt as some of the witnesses is highl discrepant and as such the trial Court should not have placed an reliance thereon to hold the appellants guilt under 0ection =>6, I9C) $he learned %dditional 0tanding Counsel on the other hand, submitted in support of the finding) $he charge is for criminal intimidation alleged to have committed against 0usila 9ani) $he prosecution case is that the appellants !idnapped ;anjula ,9? 3. and when ;anjula and her companions 9?s 1 and = protested the appellants threatened them all) &ut as it appears, there was none named 0usila among the persons threatened) $he learned %ddl) :overnment %dvocate submitted that the mista!e in the charge cannot be of an conse5uence and the same cannot effect the trial adversel as the appellants were well aware from the beginning that the case was for committing the offence against the victim girl ;anjula $he appellants also do not challenge the order of conviction for the above defects in the charge) #n the other hand, it is contended on behalf of the appellants that there is no reliable evidence to support the order of conviction under 0ection =>6, I9C) In the above conteAt, it is noticed that all the e e+witnesses including the victim girl have stated that the persons threatened them showing a !nife) %ll of them have also deposed that appellant %bha a /ena was holding the !nife) $he witnesses have also identified the !nife which has been mar!ed on ;) #) I) &ut on a close scrutin of the evidence of the witnesses, it appears that ;7 #) I can not be the !nife said to have been used b the appellant %bha a in threatening the witnesses) %bout the use of !nife and the identification thereof the 9? 1 has deposed Hwhile we were following the accused persons ,both the accused persons. told as to wh we were chasing and sa ing so the threw one Fati ,%gain tie+witness sa s that the threw one !nife, but not Fati.) ;) #) I is that !nife) $hat ;) #) I was brought b 8ebi!aG) @urther he has deposed H8ebi!a brought ;) #) I to the village "ara anpurG) 8ebi!a has been eAamined as 9? =) $hough this witness has deposed that appellant %bha a /ena showed a !nife to her, her testimon does not show that the !nife was thrown at them or that she pic!ed up the same and too!, it to her village) $he victim girl, 9? 3, and her companion, 9? < have not also stated that the !nife was thrown b an ) of the appe *ants while the were going awa from the ;ahishi!otha hill ta!ing with them the victim girl) Contrar to the above evidence of 9? 1, the brother ,9? 6. of the victim girl has deposed that he saw the !nife in the hands of appellant %bha a from a distance of -=> cubits while he was at &haliatota) *e has also identified the ;) >)I to be the !nife which he saw in the hands of appellant %bha a /ena) $he evidence of all these witnesses

becomes highl suspicious where Cthe evidence of 9? 6, the I) #) is loo!ed into) 9? 6 in his evidence has stated that the II.) #) I was seiBed in connection with another case i) e), 0)C) "o) 13 of 133> and the same had no role to pla in this case) @rom the above evidence, it is difficult to accept that the witnesses 9?s 1,3, <, = and 6 saw the ;) #) I) in the hands of %bha a) $herefore the alleged threats given b the appellant %bha a /ena b showing a !nife to the witnesses cannot also be accepted base a conviction for an offence under 0ection =>6, I9C) 2) In the result, the appeal is allowed) $he order of conviction and sentence passed against the appellants b the trial Court in 0essions $rial "o) 11/3-+=/3- :'C is set aside and the appellants are ac5uitted from the charges under 0ections 366 and =>6, I9C) $he be set at libert forthwith if their detention is not re5uired in an other case