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Judgment
Deepak Gupta, C.J.—This criminal revision petition is directed against the judgment dated 30-09-2005 passed by the learned Additional Sessions Judge, North Tripura, Dharmanagar in Criminal Appeal No. 21(3) of 2005 whereby he disposed of the appeal filed by the present petitioner and upheld his conviction u/s 374 of Cr.P.C., but modified and reduced the sentence to 5(five) years rigorous imprisonment and to pay a fine of Rs. 10,000/- and in default thereof, to undergo further rigorous imprisonment for six months for commission of offence punishable u/s 366 of Indian Penal Code(IPC).
Briefly stated, the prosecution story is that on 30-11-2004, the accused kidnapped the victim who was a young girl aged about 12 years (hereinafter referred to as ''C'') while she was going to school. It is alleged that ''C'' was kept in captivity for about one month and recovered thereafter. It would be pertinent to mention that the petitioner was also just over 18 years of age when the occurrence took place. From the material on record, it is apparent that some friendship had developed between this boy and the girl.
PW-4 who is the classmate of the young girl states that when she along with ''C'' and the brother of ''C'' were going towards school, ''C'' stopped on the road and they proceeded further. After a little while the brother Rakesh started crying and when she asked him why he was crying, the brother told this witness that his sister had gone away. Later the witness came to know that ''C'' had gone away with the accused. She is the only eye witness. At the time when the complaint was made, the brother Rakesh Sahajee was not examined. The only eye witness does not say that the victim was enticed or seduced or forcibly taken away. It appears to me that the young girl consented to go away with the accused.
Having held so, the accused cannot be acquitted because we are dealing here with a girl who was only 12 years of age and there is no cross-examination with regard to her age. The accused may also have been a young boy, but he could not take away a 12 year old girl even with her consent away from the guardianship of her parents. Therefore, even if the version of the accused is accepted that the girl (''C'') went with her consent, the accused cannot be acquitted.
Having held so, I am of the considered view that the sentence imposed upon the accused is unduly harsh. As held by me above, it is apparent that the young victim (''C'') had gone of her own volition with the accused. He was also a young boy. The girl lived with him for one month, but there is no allegation whatsoever that he tried to molest her or sexually abuse her during this period. These are factors which weigh in favour of the accused. He may have done a wrong act, but having opportunity to do something which was even worse he did not do anything which was wrong thereafter.
Unfortunately, I have been informed that the bail application of the petitioner was rejected and he continues to languish in jail. Therefore, the only order which can be passed is that the sentence imposed upon him is modified to that which has already been undergone and he is ordered to be released forthwith.
The revision petition is disposed of in the aforesaid terms.
Send down the lower court records forthwith.