Conviction under Section 366A requires proof of intent to induce illicit intercourse; absent that, liability is confined to Section 363.

The appellant, Bijay Goswami, and co-accused Krishna Bahadur Giri allegedly approached the informant, Sushila Tigga, with a proposal for her daughter’s marriage with Krishna Bahadur.

On 9 July 2001, while the victim was proceeding to school, the accused allegedly took her away.

The appellant allegedly took her to his house, where she remained for two days, after which Krishna Bahadur and his parents took her to Nepal.

The appellant subsequently gave the informant a Nepal telephone number to speak with the victim.

A case was registered under Section 366A of the Indian Penal Code, and after investigation the appellant was committed to trial in S.T. No. 57 of 2002.

The Sessions Court convicted him under Section 366A IPC and sentenced him to five years’ rigorous imprisonment and a fine of Rs. 5,000.

During the appeal, it was submitted that Krishna Bahadur, who was a juvenile, had been separately dealt with and acquitted following a compromise.

Whether the appellant’s conduct established the ingredients of an offence under Section 366A IPC, particularly the requisite intention or knowledge that the victim would be forced or seduced to illicit intercourse.

Whether, on the evidence, the appellant was instead guilty of kidnapping from lawful guardianship under Section 363 IPC.

Whether the appellant was entitled to the benefit of Section 4 of the Probation of Offenders Act, 1958, in lieu of imprisonment.

Section 366A IPC requires proof that a minor girl was induced to go from a place or do an act with the requisite intention or knowledge that she was likely to be forced or seduced to illicit intercourse with another person.

In the absence of that specific intention or knowledge, the conduct may constitute kidnapping from lawful guardianship under Section 363 IPC.

The Court applied Section 4 of the Probation of Offenders Act, 1958, which permits release of an offender on probation of good conduct where, having regard to the circumstances of the case, the nature of the offence, and the offender’s character, it is expedient to do so.

No judicial precedent was cited in the judgment.

The victim’s testimony established that the appellant and Krishna Bahadur took her from the route to school and that the appellant facilitated her initial removal by keeping her at his house for two days.

The evidence also showed that the appellant had participated in the marriage proposal and assisted in taking the victim away.

However, the Court found no sufficient evidence that the appellant possessed the specific intention or knowledge required under Section 366A IPC that the victim would be forced or seduced to illicit intercourse with another person.

Accordingly, the proved conduct amounted, at most, to kidnapping from lawful guardianship under Section 363 IPC.

Regarding sentence, the Court considered the appellant’s age, character, antecedents, the nature and circumstances of the offence, the lapse of time, and the fact that it was his first offence, and held that probation would serve the ends of justice.

The conviction under Section 366A IPC was altered to one under Section 363 IPC.

Instead of imposing imprisonment, the appellant was granted the benefit of Section 4 of the Probation of Offenders Act, 1958, and directed to furnish a bond of Rs. 5,000 with one surety of like amount for maintaining peace and good behaviour for one year.

If the bond was not furnished within two months, the trial court was directed to secure his attendance; violation of the bond conditions could result in his being called upon to undergo the sentence under Section 363 IPC.