calcutta high court

Calcutta High Court: In an appeal challenging the judgment and order in the alleged case of abduction and sexual assault of a 14-year-old girl, a single-judge bench comprising od Tirthankar Ghosh,* J., while acquitting the appellant under Section 366 IPC due to absence of evidence supporting sexual assault, upheld the conviction under Section 363 IPC.

Brief Facts

In the instant matter, the appellant preferred the present appeal challenging the judgment and order of conviction dated 30-08-2022 and 31-08-2022, passed by the Additional Sessions Judge, where the appellant was convicted under Section 363 of the Penal Code, 1860 (IPC) and sentenced to three years and six months of imprisonment along with a fine of Rs. 5,000.

The case originated from Gopiballavpur Police Station case no. 104/2021 dated 19-11-2021, based on a complaint, by the victim’s father-complainant, alleging that the victim, a 14-year-old girl, had disappeared, and the appellant was accused of taking her away with ill intentions. The police registered the case under Section 363 and 366 of the IPC and later filed a charge-sheet under Section 363/366/376 of the IPC and Sections 6 and 8 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).


The Prosecution presented 11 witnesses and various documents, while the defense did not produce any evidence but cross-examined the prosecution witnesses. The victim testified that she was forcibly taken by the appellant, sexually assaulted, and threatened with the circulation of compromising photographs. The prosecution also presented medical reports, statements from family members, and the investigating officer’s account. Medical reports were presented to corroborate the sexual assault. The victim’s family members corroborated her disappearance and subsequent revelations. Medical reports were presented to corroborate the sexual assault. Medical reports presented conflicting evidence. While the victim’s testimony detailed sexual assault, the medical examination did not find visible signs of forcible intercourse or external injuries. The defense argued that the victim’s statement and subsequent testimony were inconsistent. The defense highlighted the absence of injuries in the medical report and questioned the reliability of the victim’s account, suggesting coaching by family members.

The trial court acquitted the appellant under Section 376 IPC and Sections 6 and 8 of the POCSO Act, citing inconsistencies in the victim’s statements and the absence of injuries in the medical report. The Court convicted the appellant under Section 363 IPC, leading to the current appeal.

Parties’ Contentions

The appellant contended that the case rested on the victim’s solitary statement, challenging its reliability. The appellant emphasised the initial statement under Section 161 CrPC, the medical report’s findings, and alleged tutoring of the victim’s testimony.

The State argued that the trial court showed leniency, emphasising victim’s minor status and her recovery from the accused’s house and criticised the trial court’s decision to limit the conviction to Section 363 IPC. The State argued that the victim, being a minor, was recovered from the appellant’s house, fulfilling the essential elements of the offense.

Court’s Consideration

The Court emphasised the need for proof of intent for an offense under Section 366 IPC. The Court stated that “an offence under Section 363 of IPC will not automatically lead to the finding of guilt under Section 366 of IPC. There must be some materials to come to a conclusion that the victim was seduced to illicit intercourse and/or the accused knew it to be likely that she may be seduced to illicit intercourse, as a result of such kidnapping.” The Court held that the acquittal under Section 366 IPC is based on insufficient evidence to establish the specific intent required by the statute.

The Court acknowledged the inconsistencies in the victim’s statements but focused on the crucial fact that the minor was induced and coerced by the appellant and recovered from his house.

“…fact remains that the victim girl was 14 years 1 month at the time of the incident and the consistent version is that she was induced and coerced by the appellant and taken to his house. To that effect the evidence of the prosecution witnesses were consistent, as she was recovered from the house of the appellant in the next morning.”

Court’s Decision

The Court affirmed the conviction under Section 363 IPC, emphasising the minor’s coercion and inducement by the appellant, despite inconsistencies in the victim’s statements. While upholding the conviction under Section 363 IPC, the appellate court found insufficient evidence for Section 366 IPC.

[Dugu Saren v. State of W.B., 2023 SCC OnLine Cal 5618, order dated 22-12-2023]

*Judgment by Justice Tirthankar Ghosh

Advocates who appeared in this case :

Mr. Soumyajit Das Mahapatra, Counsel for the Appellant

Mr. S.G. Mukherjee, Ld. P.P., Mr. Sandip Chakraborty, Mr. Saryati Datta, Counsel for the State

Mr. Dipanjan Dutt, Counsel for the de facto complainant

Buy Protection of Children from Sexual Offences Act, 2012   HERE

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Buy Penal Code, 1860   HERE

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