R.K. Bag, J. - (1.) This appeal arises out of judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Fast Track 3rd Court, Alipurduar, District -Jalpaiguri in Sessions Trial No. 15/2009 arising out of Sessions Case No. 22/2009, by which the appellant was convicted for the offence under Sec. 363 of the Indian Penal Code and was sentenced to suffer rigorous imprisonment for seven years and to pay fine of Rs. 10,000/ -, in default to suffer imprisonment for one year more.
(2.) The backdrop of conviction and sentence of the appellant is as follows: - - On March 21, 2008 the de facto complainant filed a written complaint before the Inspector -in -Charge of Kumargram Police Station on the basis of which Kumargram Police Station Case No. 82/2008 dated March 21, 2008 under Ss. 363/371 of the Indian Penal Code came into existence. The contents of the written complaint disclose that on August 15, 2007 the appellant took away two minor daughters of the de facto complainant to Delhi on assurance of providing them with work in Delhi, so that they can maintain their livelihood. It is alleged that on March 14, 2008 the de facto complainant came to learn that her elder daughter - Bhaduri is not traceable in the house of her master at Delhi. Since the appellant and her wife did not take any interest to bring back both the minor daughters of the de facto complainant from Delhi, the de facto complainant initiated the criminal proceeding against the appellant and her wife. The police conducted the investigation and the younger daughter of the de facto complainant by name Ripa Roy was brought back from Delhi to the house of the de facto complainant. The police submitted charge sheet on completion of investigation. The trial court framed charge against the appellant and his wife for the offence under Ss. 363/367/371 of the Indian Penal Code. On conclusion of the trial, the trial court acquitted the wife of the appellant of the charge under Ss. 363/367/371 of the Indian Penal Code and the appellant was also acquitted of the charge under Ss. 367 and 371 of the Indian Penal Code. However, the trial court convicted the appellant for the offence under Sec. 363 of the Indian Penal Code and sentenced him to suffer imprisonment for seven years and to pay fine of Rs. 10,000/ -, in default to suffer imprisonment for one year more. The said order of conviction and sentence passed by the learned Judge of the trial court is under challenge in this appeal.
(3.) Mr. Ranadeb Sengupta, learned Counsel, appointed as amicus curiae to defend the appellant, has made elaborate submission pointing out the discrepancies in the evidence of prosecution witnesses. Mr. Sengupta contends that the F.I.R. of the case registered on March 21, 2008 at about 8 -45 p.m. could not be placed before the learned Magistrate on the same date after 8 -30 p.m., but the endorsement on the formal F.I.R. indicates that the F.I.R. was seen by the learned Magistrate on March 21, 2008. He argues that the contents of the written complaint treated as F.I.R. were not read over and explained to the de facto complainant. He has also pointed that the accusation of the charge read over and explained to the appellant and his wife indicates that the year of commission of offence was wrongly recorded in the charge as August 15, 2008 instead of August 15, 2007 and thereby the appellant is prejudiced. By referring to the evidence of the mother of the victim girls (P.W. 1) and the father of the victim girls (P.W. 15), Mr. Sengupta submits that the parents of the minor victim girls voluntarily handed over the custody of the victim girls to the appellant, so that the victim girls may be engaged in some work in Delhi and they can maintain their livelihood. Mr. Sengupta argues that the younger victim girl, Ripa Roy came back to her parents' house during the investigation of the case, but the elder victim girl, Bhaduri could not be traced out. According to Mr. Sengupta, both the victim girls were taken away from the custody of the parents by the appellant with the consent of the parents and as such the offence of kidnapping punishable under Sec. 363 of the Indian Penal Code is not made out against the appellant.;