MOHANTA BARMAN@ BHASHKAR vs THE STATE OF WEST BENGAL AND ANR

IN THE CIRCUIT BENCH OF CALCUTTA HIGH COURT AT
JALPAIGURI
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
CRA No. 44 of 2021

Mohanta Barman @ Bhashkar
Vs.
The State of West Bengal


Before: The Hon’ble Justice Apurba Sinha Ray



For the Petitioner : Mr. Soumyajit Laskar, Adv.
Mr. Anirban Banerjee, Adv.

For the State
: Mr. Avrojyoti Das, Ld. APP

Mr. Bijay Bikram Das, Adv.
Mr. Rajdeep Das, Adv.

CAV On : 17.08.2026
Judgment On
: 01.09.2026



Apurba Sinha Ray, J. :-

Factual Matrix and the background :
1. Brushing aside the unnecessary details, this Court finds that the
victim lady has alleged that she met with the appellant in a marriage
ceremony at the house of their relatives. He took her mobile phone
number and thereafter he used to talk with her over the phone. One day,
he proposed to marry her. She told him to talk with her guardian. One
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day the appellant called her over mobile phone to meet with him at
Maynaguri. She went there where the appellant forcibly brought her to
the Kali temple at Sevok Road and there the appellant married her. On
that day, at night he brought her to Kaheli Para, Assam at the house of
the appellant’s relative namely Bhabesh Roy. She learnt from his relative
that he was already married. The appellant snatched her mobile phone
from her. She informed her house by SMS. She disclosed the name of the
place where she was kept by the appellant. Her father lodged a diary at
the Maynaguri Police Station. The Police of Maynaguri Police Station
recovered her from Assam. The appellant practiced fraud on her and gave
false information.
2. The appellant was convicted under Section 366 of the Indian
th
Penal Code by the learned Additional Sessions Judge, 4 Court at
Jalpaiguri in connection with Sessions Case No. 207 of 2015 arising out
of GR case No. 3053 of 2014 corresponding to Maynaguri Police Station
case no. 319 of 2014 dated 20.06.2014 under Section 363/366 of the
Indian Penal Code by judgment and order dated 17.12.2021.

3. According to the learned Trial Judge, the prosecution has been
able to bring home charges against the appellant under Section 366 of
Indian Penal Code since the victim lady was abducted forcibly and also
by deceitful means. The learned Trial Judge has also considered several
judgments of the Hon’ble Supreme Court including the judgment of
Kavita Chandrakant Lakhani vs. The State of Maharashtra reported
in (2018) 6 SCC 664 wherein the Hon’ble Apex Court held that in order
to constitute the offence of ‘abduction’ a person must be carried off
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illegally by force or deception, that is, to compel a person by force or
deceitful means to induce to go from one place to another. The intention
of the accused is the basis and the gravamen of an offence under this
Section. Once the necessary intent of the accused is established, the
offence is complete, whether or not the accused succeeded in effecting
his purpose, and whether or not the woman consented to the marriage
or the illicit intercourse.
4. It is also held in such judgment that apart from the above, to
constitute an offence under Section 366 IPC, it is necessary for the
prosecution to prove, inter alia, that the accused induced the
complainant woman or compelled by force to go from any place, that such
inducement was by deceitful means, that such abduction took place with
the intent that the complainant may be seduced to illicit intercourse.
5. The learned Trial Judge has further recorded that “deceit” is an
act or practice of deceiving i.e. causing someone to believe something that
is not true by concealing or misrepresenting the truth and is an essential
element of cheating and induces the person so deceived to do or omit to do
anything which he would not do or omit if he were not so deceived and
which act or omission causes damage or harm to that person in body,
mind, reputation or property.
In Haidar Shah v. Emperor reported in AIR 1930 Lah 52 (1930 Cri LJ 529)
it has been observed that intention can be inferred from the conduct of the
accused and the circumstances of the case, and ordinarily it is not possible
for the prosecution to establish the intention except by proving the conduct
of the accused.
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As per Section 114 of the Evidence Act the court may presume existence
of certain facts.
In Syad Akbar v. State of Karnataka reported in (1980) 1 SCC 30 it has
been observed that Presumptions of fact" are inferences of certain fact
patterns drawn from the experience and observation of the common course
of nature, the constitution of the human mind, the springs of human action,
the usages and habits of society and ordinary course of human affairs.
The Court has discretion on facts of each case to draw presumption of
facts.
When abduction of a woman is established the natural presumption is
that the accused abducted the woman with the intention to marry her
forcibly or with the intention of illicit intercourse with her either by force or
with her consent after seduction and for any other immoral purpose and if
he has any intention other than the suggested natural circumstances of
the case the burden lies upon him u/s 106 of the Evidence Act.
6. The learned Trial judge has also found that as the victim was
recovered from his house at Assam, the appellant is under a duty to
explain that the victim was not abducted by him for any illegal purpose.
As such the learned Trial Judge has drawn adverse presumption against
him as the appellant failed to adduce any evidence to discharge the onus
shifted upon him.

Rival contentions:
7. Mr. Anirban Banerjee, the learned advocate appearing for the
appellant has submitted that after conclusion of the trial the appellant
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was convicted under Section 366 of IPC for 3 years simple imprisonment
and the appellant was further directed to pay a fine of Rs. 10,000/-in
default to pay such fine, a further simple imprisonment for two months
is prescribed. Mr. Banerjee has argued that from the evidence of the
victim lady it was clear that she had a love affair with the appellant and
she voluntarily fled away with the appellant and they got married in a
Kali Temple and therefore, Section 366 of the Indian Penal Code is not
applicable. Mr. Banerjee has further submitted that the learned Trial
Judge failed to appreciate that there is no material against the appellant
to convict him under Section 366 of IPC. From the four corners of the
evidence of the witnesses not a single clinching proof has been unearthed
wherefrom it can be said beyond doubt that the appellant abducted the
victim lady.
8. The learned State Counsel, Mr. Bijay Bikram Das has vehemently
argued that the learned trial Judge has rightly passed the impugned
judgment of conviction and sentence after appreciating the evidence on
record and also considering the present law of the land. The impugned
judgment is proper and legal and as such, there is no scope for
interference from this appeal court.

Analysis:
9. Needless to mention, the victim lady PW 2 is the best witness for
the prosecution since no other witnesses saw the alleged abduction of
the victim lady at the instance of the appellant. Therefore, if the
deposition of the victim lady inspires confidence, then there is no need
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for further corroboration of her testimony. If we once again consider her
deposition before the Trial Court we shall find that she stated that they
used to talk over phone and on one day, the appellant gave her a proposal
for marriage. On 14.06.2014 the appellant called her over phone to meet
him at Maynaguri and when she went there the appellant forcibly took
her to the Kali Temple at Sevok Road and there the appellant married
her and on the same day at night the appellant brought him to Kaheli
Para, Assam and after reaching there she came to know from the relatives
of the appellant that the appellant was already married. In her cross-
examination, she has stated on the relevant date she was brought to
Sevok Road Kali Temple by the appellant by riding a bus. Many boarders
were there in that bus. At about 1 p.m. they arrived at Sevak Kali Temple
by a Maruti van from Odlabari. They were in Kali Temple for about one
hour. As she was threatened by the appellant she did not disclose before
the priest of the temple that she was taken there by force. She was
brought to Assam by availing a train but although there were many
passengers in the train she did not disclose anything. She has further
stated that she was recovered from the house of the relative of the
appellant on 19.06.2014 and on the next day she was brought to
Maynaguri Police Station. There was a suggestion that she would not
have agreed to marry the appellant, had it been known to her that he
was a married person.
10. The evidence disclosed that when the incident took place on
14.06.2014 or prior to that date, the victim was an adult. Although she
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repeatedly stated that the appellant threatened her into marrying him,
she did not specify the exact words or threats used. Furthermore, PW 2
did not describe the specific nature of the force used to bring her to the
Kali Temple at Sevok Road or, subsequently, to Assam.
11. The record reveals that they boarded a bus with numerous
passengers, yet the victim never disclosed to anyone that she was being
threatened into marriage or forcibly taken to an unknown location.
Similarly, she failed to inform the priest or fellow train passengers during
their journey to Assam. Her failure to report the alleged threats during
these opportunities demonstrates voluntariness. Had she been genuinely
threatened or subjected to overwhelming force, she had ample
opportunity to seek help while traveling by bus to the Kali Temple or by
train to Assam. This lack of action raises serious doubts regarding her
claim that she did not consent to accompanying the appellant to the Kali
Temple and Kaheli Para in Assam.
12. Additionally, the victim alleged that the appellant used deceitful
means to take her from Maynaguri to his relative's home in Assam.
However, while PW 2 referenced "deceitful means," she failed to define or
detail what those actions entailed. A mere assertion of deceit does not
satisfy the essential legal elements of an offence under Section 362 of the
IPC. The victim must specify how she was deceived and articulate the
nature of the deceptive words, language, or conduct employed by the
appellant. Based on her examination-in-chief, no such details were
provided. Consequently, the prosecution failed to establish that any force
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or threat was exerted by the appellant to compel the marriage at the Kali
Temple.
13. Nevertheless, the deposition and cross-examination of PW 2
reveal that the victim was unaware that the appellant was already
married. During cross-examination, she explicitly stated that she would
not have married him had she known his marital status. Thus, the record
indicates that her consent was manipulated due to the concealment of
his prior marriage, and she only alleged abduction after discovering this
fact.
14. Before requiring the appellant to explain his conduct under
Section 106 of the Evidence Act, the prosecution must first establish the
foundational facts of abduction beyond reasonable doubt. In this case,
the prosecution completely failed to prove abduction under the law, as
no evidence of force or threats was presented. The sole argument
advanced was that the appellant deceived the victim by failing to disclose
his existing marriage. An adult who willingly enters into a romantic
relationship must exercise due circumspection before deciding to marry
someone whose background is unknown. Finally, there is no evidence on
record indicating any attempt at illicit intercourse beyond the marriage
itself.
15. Section 366 of IPC is as hereunder.
“366. Kidnapping, abducting or inducing woman to
compel her marriage, etc.—
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Whoever kidnaps or abducts any woman with intent that
she may be compelled, or knowing it to be likely that she
will be compelled, to marry any person against her will, or
in order that she may be forced or seduced to illicit
intercourse, or knowing it to be likely that she will be forced
or seduced to illicit intercourse, shall be punished with
imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine; and
whoever, by means of criminal intimidation as defined in
this Code or of abuse of authority or any other method of
compulsion, induces any woman to go from any place with
intent that she may be, or knowing that it is likely that she
will be, forced or seduced to illicit intercourse with another
person shall be punishable as aforesaid. ”
16. From the above, it appears that to attract Section 366 of the IPC,
there must be compulsion by the appellant to force the victim into
marriage against her will. The prosecution has utterly failed to prove that
any force was exerted against the victim at the instance of the appellant.
Furthermore, there was no allegation that the victim was forced or
seduced into illicit intercourse. The "deceitful means" claimed by the
victim were not established by the prosecution, as they failed to
demonstrate the specific nature of the deception exercised upon her.
Merely because the victim deposed that the appellant used deceitful
means does not, by itself, bring the allegation within the ambit of either
Section 362 or Section 366 of the IPC.
17. In the judgment referred to by the learned Trial Judge that is
Kavita Chandrakant Lakhani (supra) , the Hon’ble Apex Court was also
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pleased to hold that “ Mere abduction does not bring an accused under the
ambit of this penal section. So far as charge under Section 366 IPC is
concerned, mere finding that a woman was abducted is not enough, it
must further be proved that the accused abducted the woman with the
intent that she may be compelled, or knowing it to be likely that she will
be compelled to marry any person or in order that she may be forced or
seduced to illicit intercourse or knowing it to be likely that she will be forced
or seduced to illicit intercourse. Unless the prosecution proves that the
abduction is for the purposes mentioned in Section 366 IPC, the court
cannot hold the accused guilty and punish him under Section 366 IPC.”

Decision:-

18. In view of the above, I do not find that the prosecution has been
able to prove the ingredients of abduction, as laid down under Sections
362 and 366 of the IPC, beyond reasonable doubt. While it is true that
the victim was recovered from the house of the appellant's relatives in
Assam, this alone does not establish that she was abducted within the
ambit of Section 366 of the IPC. The initial consent of the victim is
palpable.
19. Therefore, the appellant is entitled to the benefit of the doubt.
Accordingly, the judgment and order of conviction and sentence dated
17.12.2021, passed by the learned Additional District and Sessions
Judge, 4th Court, Jalpaiguri in connection with Sessions Case No. 207
of 2015 (arising out of GR Case No. 3053 of 2014, corresponding to
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Maynaguri Police Station Case No. 319 of 2014 dated 20.06.2014) under
Sections 363/366 of the Indian Penal Code, is hereby set aside. The
appellant is acquitted of the charge under Section 366 of the IPC and is
discharged from his bail bond.
20. The Trial Court Records shall be sent back to the learned Trial

Court immediately, along with a copy of this judgment.
21. Criminal Appeal No. 44 of 2021 is thus allowed, and all connected
applications, if any, stand disposed of.
22. All parties shall act in terms of server copy of the order
downloaded from the official website of this Court.
23. Urgent photostat certified copies of this judgment, if applied for,
be supplied to the parties on compliance of all necessary formalities.

[Apurba Sinha Ray, J.]
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