Woman Keeping Minor As Maid Cannot Be Treated As Her 'Lawful Guardian': Calcutta High Court Quashes Kidnapping Case
The Calcutta High Court has overturned a 2007 conviction for kidnapping of a minor girl, holding that the prosecution failed to prove that the girl had been taken away from the “lawful guardianship” of the woman with whom she was residing as a 'maidservant.'
Justice Chaitali Chatterjee Das, while allowing the appeal, emphasised that the prosecution's case suffered from contradictions, unreliable testimony, and an entirely unstable foundation regarding who the lawful guardian actually was. The Court observed that the trial court had already acquitted the accused of the graver charge under Section 373 IPC, and even the remaining conviction under Section 363 could not be sustained.
At the centre of the Court's reasoning was the question of whether Chhanda Bibi, in whose house the minor girl was living, could legally be considered a guardian for the purposes of Section 363 IPC. Justice Das noted that the prosecution's own evidence made this assumption unsustainable.
The victim stated that her mother had left her with Chhanda Bibi due to compelling circumstances related to poverty, yet there was no evidence that Chhanda Bibi assumed any guardianship responsibilities.
The Court highlighted that the prosecution witnesses were themselves inconsistent: while the victim claimed she had been staying with Chhanda Bibi for two years, Chhanda Bibi claimed it was only six months. In some portions of her testimony, she described the girl as her daughter's friend; in others, she said the girl worked as a domestic help. These contradictions, the Court held, “render her evidence devoid of credibility and make it impossible to infer lawful guardianship.”
The High Court further noted that even the timeline offered by the prosecution was riddled with inconsistencies. Chhanda Bibi stated that the victim went missing on November 3 and that she only learned of her recovery three days later. However, this was directly contradicted by the police witnesses, who claimed they rescued the girl on the very same night during a raid. The Court held that such glaring inconsistencies went to the root of the prosecution case and could not be brushed aside. “Her evidence loses its credentials,” Justice Das remarked, concluding that the prosecution failed to establish the most essential element of the offence: that the victim was taken from lawful custody without consent.
Significantly, the Court relied on the victim's own testimony, which indicated that she had prior acquaintance with the accused. She stated openly that the accused had told her he intended to buy her new garments and that he had expressed a desire to marry her. More importantly, she admitted she accompanied him voluntarily and had never alleged that force was used.
Justice Das observed that this admission substantially undermined the prosecution's allegation of kidnapping. “It is glaringly proved that she had acquaintance with the appellant prior to the incident, and she never alleged that she was taken by force,” the Court wrote, adding that the voluntary nature of her departure was inconsistent with the offence of kidnapping under Section 363 IPC.
The Court also found the alleged raid and rescue operation highly doubtful. The prosecution claimed that police raided a location in Sonagachi and rescued the victim, but several procedural irregularities cast grave doubt on this version. No general diary entry was made before the police left the station; key entries were admitted by the Investigating Officer to be missing; the lady constables who allegedly participated in the raid had not even had their statements recorded under Section 161 CrPC; and every local independent witness either turned hostile or contradicted the police. No club member or resident from the locality corroborated the raid.
The Court held that “the raid itself stands on shaky ground” and that the prosecution failed to establish that the victim was being sold for prostitution, a charge already rejected by the trial court.
The defence version, which suggested prior disputes between the accused and the household of the victim, was considered plausible by the Court. Witnesses stated that the victim and Chhanda Bibi often hired bicycles from the accused and that quarrels had taken place over unpaid dues. One defence witness even stated that Chhanda Bibi had threatened to implicate the accused falsely. Though the Court did not treat these claims as fully proved, it noted that they contributed to reasonable doubt when viewed alongside the prosecution's inconsistencies.
Concluding the judgment, the Court held that the prosecution had “failed to establish beyond reasonable doubt” that the girl was kidnapped or taken away from the lawful guardianship of any person. Justice Das categorically stated that “the victim voluntarily went with the accused” and that the conviction under Section 363 could not be upheld. The appeal was accordingly allowed, and the conviction and sentence were set aside.
Case: SK.SAMAD VS THE STATE OF WEST BENGAL
Case No: CRA 377 OF 2007