1. Heard Mr. K. Nath, learned counsel appearing for the appellant. Also heard Mr. Ratan Datta, learned Public Prosecutor appearing for the State-respondent.2. The present appeal has been preferred by the appellant challenging the judgment dated 22.09.2017 wherein he was convicted and sentenced to suffer R.I. for the offence under Section 365 of the Indian Penal Code (for short, IPC). By the same judgment, the learned Sessions Judge has acquitted the appellant from the charge levelled against him under Section 376 of IPC.3. The prosecution case was launched on the basis of a complaint lodged by the prosecutrix wherein she stated that on 01.09.2014, she had boarded one train from Badharghat to return to her house. Just after her boarding the appellant had tried to contact with her over her mobile. Initially, she responded to those calls. However, she had switched off her mobile later on. The appellant wanted to know about her whereabouts. It is further stated in the complaint that when she got down from the train at Manu station she had seen the appellant at the station. The appellant had broken her conch and had slapped and scolded her. Thereafter, she was asked to walk on foot and while she was walking the appellant was proceeding ahead of her. Reaching at Manu, she boarded an auto along with the appellant. She was threatened that she would be killed if she raises any alarm. She was taken to a sweet shop where she had eaten puri and vegetable with tea. Thereafter, she boarded a bus along with the appellant on their journey to Kumarghat to purchase conch from the market. Thereafter she was again taken to a sweet shop and she was offered tea and sweet but she disagreed. At that time, the appellant had scolded her. Thereafter the appellant went to a chanachur shop which was situated adjacent to the sweet shop where he had consumed liquor. Thereafter they came to Nalkata where the appellant after getting down from the bus had pressed her mouth and took her to his room. Inside the room the appellant had fastened her mouth by a gamcha (napkin) forcibly. Thereafter, the appellant had fastened her hands as well as legs with a jute made rope lying in his room. He cut down the right sided hair of the victim with a scissor. Her wearing apparels were put off and raped her. Later on, he left her and was allowed to wear her wearing apparels. Subsequently, returning back to her house she narrated the fact to her husband.4. On the basis of this complaint, FIR No. 19/2014, dated 02.09.2014 was registered by Manu PS, Dhalai. Being endorsed the I.O. had carried on investigation, recorded the statements of the available witnesses, arranged to record the statement of the woman (complainant) under Section 164 of CrPC. Being found prima facie case against the appellant, the investigating officer has submitted charge-sheet.5. Being committed, learned Sessions Judge, Unakoti District had framed charge against the appellant under Section 365 of IPC and Section 376 of IPC. The charge was read over to the appellant where he denied that he had committed such offence and pleaded his innocence.6. During trial, the Court had examined the prosecutrix including other 11 (eleven) witnesses. The prosecution side has relied upon the evidence of PWs-1, 2 and 4. The learned Judge after conclusion of recording of evidence had examined the accused-appellant under Section 313, CrPC where he pleaded his innocence, however, he denied to adduce any evidence.7. Having heard the learned counsels appearing for the parties as well as after due consideration of the materials brought on record the learned Sessions Judge had acquitted the accused-appellant from the charge levelled against him under Section 376 of IPC. However, the appellant has been convicted and sentenced under Section 365 of IPC as aforestated.8. Mr. K. Nath, learned counsel appearing for the appellant has submitted that the prosecution has miserably failed to establish the essential ingredients as envisaged under Section 365 of IPC. He has further submitted that the prosecutrix was aged about 39 years at the time of commission of offence and the appellant was aged about 32 years at that time. Mr. Nath has drawn my attention to the nature of the evidence that from the version of the prosecutrix it is revealed that she got down from the train on her own volition, accompanied the accused-appellant to many places and most importantly, while they were coming out of the Manu Railway station the appellant was ahead of the prosecutrix but throughout their journey the victim had never raised any alarm to anyone that she was forced to accompany the appellant.9. Mr. Nath, learned counsel has relied upon a judgment in the case of Shyam & Anr. v. State of Maharashtra , reported in AIR 1995 SC 2169 drawing my attention at Para 3, he has submitted that in a similar situation Supreme Court has acquitted the appellant and charge levelled against him was under Section 366 of IPC.10. I have perused the said judgment of the Apex Court in the case of Shyam (supra) . It was a case where a girl of 16 years was taken by the accused-appellant sitting her on the carrier of his bicycle, on her way to the house of the accused she did not raise any alarm. In that circumstance, the Supreme Court had observed that the allegation of abduction against the accused person was not substantiated and the statements of the victim could not be relied upon.11. I have perused the evidence which the prosecutrix has adduced as PW-1 is just a replica of the statement she made in her complaint on the basis of which FIR was registered by the O.C. of Manu PS. In her cross-examination, she has stated that the mobile number of the accused was with her and also her mobile number was given to him and they had frequent talking over mobile phone. They had their relationship and she herself had intimated the appellant about her programme. There were many other people present. She has further stated that they were moving together from 2:30 pm till her return to Manu at 9:00 pm. She went to many other places from Manu to Kumarghat. She has further stated that her husband is 30 years older than her.12. I have taken note of the observation of the Supreme Court in the case of Shyam (supra) wherein at Para 3, the Apex Court has held that-' 3. In her statement in Court, the prosecutrix has put blame on the appellants. She has deposed that she was threatened right from the beginning when being kidnapped and she was kept under threat till the police ultimately recovered her. Normally, her statement in that regard would be difficult to dislodge, but having regard to her conduct, as also the manner of the so-called 'taking', it does not seem that the prosecutrix was truthful in that regard. In the first place, it is too much of a coincidence that the prosecutrix on her visit to a common tap, catering to many, would be found alone, or that her whereabouts would be under check by both the appellants/ accused and that they would emerge at the scene abruptly to commit the offence of kidnapping by ' 'taking' her out of the lawful guardianship of her mother. Secondly, it is difficult to believe that to the strata of society to which the parties belong, they would have gone unnoticed while proceeding to the house of that other. The prosecutrix cannot be said to have been tied to the bicycle as if a load while sitting on the carrier thereof. She could have easily jumped off. She was a fully grown up girl may be one who had yet not touched 18 years of age, but, still she was in the age of discretion, sensible and aware of the intention of the accused Shyam, That he was taking her away for a purpose. It was not unknown to her with whom she was going in view of his earlier proposal. It was expected of her then to jump down from the bicycle, or put up a struggle and, in any case, raise an alarm to protect herself. No such steps were taken by her. It seems she was a willing party to go with Shyam the appellant on her own and in that sense there was no 'taking' out of the guardianship of her mother. The culpability of neither Shyam, A-1 nor that of Suresh, A-2, in these circumstances, appears to us established. The charge against the appellants/ accused under Section 366, I.P.C. would thus fail. Accordingly, the appellants deserve acquittal. The appeal is, therefor
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e, allowed acquitting the appellants.'13. Applying the aforesaid principles in the facts and circumstances of the present case, I am of the considered view that the prosecution side has miserably failed to establish the ingredients of Section 365 and 366 of IPC to convict the accused-appellant. According to him, the learned Sessions Judge has committed serious error in convicting the accused person, the appellant herein, under Section 365 of IPC.14. Having held so, the judgment and order of conviction and sentence dated 22.09.2017, passed by the learned Sessions Judge, Unakoti Judicial District, Kailashahar in Case No.ST 48(U/K) of 2015 is set aside and quashed.15. The appellant is acquitted of the charge levelled against him under Section 365 of IPC. His bail bond is discharged. Surety of the bail bond is also discharged.16. Resultantly, the instant appeal filed the appellant stands allowed.Send down the LC records.